The Core Human Rights Treaties and Thailand [1 ed.] 9789004326675, 9789004326668

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The Core Human Rights Treaties and Thailand

International Studies in Human Rights VOLUME 117

The titles published in this series are listed at brill.com/ishr

The Core Human Rights Treaties and Thailand A Study in Honour of the Faculty of Law, Chulalongkorn University, Bangkok

By

Vitit Muntarbhorn

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data   Names: Withit Mantāphō̜ n, author. | Čhulālongkō̜ nmahāwitthayālai. Khana Nitisāt. Title: The core human rights treaties and Thailand : a study in honour of the Faculty of Law, Chulalongkorn University, Bangkok / by Vitit Muntarbhorn. Description: Leiden ; Boston : Brill/Nijhoff, 2016. | Series: International studies in human rights volume 117 | Includes bibliographical references and index. Identifiers: lccn 2016034436 (print) | lccn 2016034499 (ebook) | isbn 9789004326668 (hardback : alk. paper) | isbn 9789004326675 (E-book) Subjects: lcsh: Čhulālongkō̜ nmahāwitthayālai. Khana Nitisāt. | Human rights--Thailand. | Treaties. | Human rights. Classification: lcc kpt2460 .W59 2016 (print) | lcc kpt2460 (ebook) | ddc 341.4/809593--dc23 lc record available at https://lccn.loc.gov/2016034436

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 0924-4751 isbn 978-90-04-32666-8 (hardback) isbn 978-90-04-32667-5 (e-book) Copyright 2017 by Faculty of Law, Chulalongkorn University, Thailand. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Preface vii Abbreviations ix List of Tables xii 1

Human Rights Treaties and Thailand 1

2

The Convention on the Elimination of All Forms of Discrimination against Women (cedaw) and Thailand 20

3

The Convention on the Rights of the Child (crc) and Thailand 68

4

The International Covenant on Civil and Political Rights (iccpr) and Thailand 141

5

The Convention on the Elimination of All Forms of Racial Discrimination (cerd) and Thailand 195

6

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (cat) and Thailand 228

7

The International Covenant on Economic, Social and Cultural Rights(icescr) and Thailand 265

8

The Convention on the Rights of Persons with Disabilities (crpd) and Thailand 309

9

The International Convention for the Protection of All Persons from Enforced Disappearance (ced) and Thailand 329

10

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (cmw) and Thailand 339

11 Orientations 350

Select Bibliography 361 Index 368

Preface This study endeavours to provide an overview of Thailand’s relationship with the nine key human rights treaties or Conventions evolved under United Nations (un) auspices after the Second World War. These “Core Human Rights Treaties” are dealt with chapter by chapter in a chronology reflecting Thailand’s ratification of (or accession to) them and the reporting process to the international monitoring bodies. In addition to these treaties, there are a number of treaties which add to or amend the core treaties, known as the Protocols, and these are also covered in the analyses. The main aim of the work is to capture the process whereby Thailand is to take stock of the human rights situation in the country against the backdrop of the international standards set by each treaty, including its obligation to send national reports periodically to the monitoring Committee established thereunder. It underlines various concerns emerging from the dialogues between the representatives of the country and the monitoring Committee, coupled with the ensuing recommendations (“Concluding Observations”) from the latter. The need for follow-up of key challenges in the implementation process is part of a sustained and unending cycle under each treaty. This dynamic is at the heart of the country’s relationship and engagement with the system at hand. This is targeted towards improved promotion and protection of human rights, bearing in mind international/universal standards, while providing space for local wisdom. The author would like to thank warmly the following institutions and friends: Faculty of Law, Chulalongkorn University, Ministry of Foreign Affairs (Thailand), Ministry of Justice (Thailand), Ministry of Social Development and Human Security (Thailand), National Human Rights Commission of Thailand, ohchr, Dean Prof. Dr. Nantawat Boramanand, Professor Emeritus Amara Pongsapich, Ambassador Manasvi Srisodapol, Dr. Sriprapha Petcharamesree, Art Paisit Pusittrakul, Sirawit Pradiskool, Laurent Meillan, Khun Pumm Nareerat of the Ministry of Justice, Khun Poo and Khun Lalintip of the Ministry of Social Development, Permanent Secretary of the Labour Ministry Khun Nakorn, former Permanent Secretary of the Foreign Ministry Khun Norachit, Prof. Dr. Sakda Thanitcul, Nong Poom, Khun Jou and other friends/colleagues at the Chulalongkorn University for their kind support. I apologize if I have forgotten anyone. The views in this study are my personal views and the mistakes are mine alone. The situation covered in the study is until 2015.

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The book is inspired greatly by the spirit of three wonderful ladies – three Aunties – who guided me in human rights and human development: Khunying Ambhorn Meesook, Khunying Kanitta Wichiencharoen and Khunying Kanok Samsen Vil. It is also dedicated to Chulalongkorn University’s Centenary in 2017: Heartfelt Congratulations! Vitit Muntarbhorn

Professor Emeritus of Law, Chulalongkorn University, Bangkok, April b.e.2559 (a.d. 2016)

Abbreviations a.d. Anno Domini ai Amnesty International alro Agricultural Land Reform Office apt Association for the Prevention of Torture asean Association of South-east Asian Nations azt Azidothymidine b.e. Buddhist Era (nb. 543 years before a.d.) Bangkok Metropolitan Administration bma cat Convention against Torture and Other Cruel, Inhuman and Degrading Treatment ced International Convention for the Protection of All Persons from Enforced Disappearance (sometimes abbreviated as cpaped). It may also refer to its Committee. cedaw Convention on the Elimination of All Forms of Discrimination against Women cerd International Convention on the Elimination of All Forms of Racial Discrimination cgeo Chief Gender Equality Officer cmw Convention on the Protection of the Rights of All Migrant Workers and of their Families commit Coordinated Mekong Ministerial Initiative against Trafficking crc Convention on the Rights of the Child. It may also refer to its Committee. crpd Convention on the Rights of Persons with Disabilities csw Communal sex workers Doc. Document dpw Department of Public Welfare eapd Education Act for Persons with Disabilities ecd Early childhood development ecpat End Child Prostitution in Asian Tourism, later changed to End Child Prostitution, Child Pornography and Child Trafficking for Sexual Purposes eu European Union fidh Federation Internationale des Droits de l’ Homme gaor General Assembly Official Records gdp Gross domestic product geo Gender equality officer

x

Abbreviations

hiv/aids Human immunodeficiency virus infection and acquired immune deficiency syndrome hrc Human Right Committee icc International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights iccpr International Covenant on Civil and Political Rights icescr International Covenant on Economic, Social and Cultural Rights icj International Commission of Jurists idcs Immigration Detention Centres ieps Individualized education programs ilo International Labour Organization iom International Organization for Migration ipec International Programme on the Elimination of Child Labour jpf Justice for Peace Foundation mdgs Millennium Development Goals moh Ministry of Health moi Ministry of Interior moj Ministry of Justice mou Memorandum of Understanding mp Member of Parliament msdhs Ministry of Social Development and Human Security nacc National Anti-Corruption Commission nb Nota Bene (note) ncpo National Council for Peace and Order nectec The National Electronics and Computer Technology Center ncwa National Commission on Women’s Affairs nesdb National Economic and Social Development Board nesdp National Economic and Social Development Plan ngo Non-governmental Organization nhrct National Human Rights Commission of Thailand No. Number obec Office of Basic Education Commission ohchr Office of un High Commissioner for Human Rights oncwa Office of the National Commission on Women’s Affairs ontc the Office of National Telecommunications Commission opcat Optional Protocol to the Convention against Torture oscc One Stop Crisis Centre pacc Public Sector Anti-Corruption Commission Para. Paragraph pdea Persons with Disabilities Empowerment Act

A bbreviations pew Plan on Empowerment of Women sbpac Southern Border Provinces Administration Centre spfjt Social Protection Floor Joint Team tb Tuberculosis uhc Universal Health Coverage un United Nations uncac United Nations Convention against Corruption unhcr un High Commissioner for Refugees unicef un Children’s Fund unifem un Development Fund for Women, now un Women unts un Treaty Series upr Universal Periodic Review usd us dollar Vol. Volume wdp Women’s Development Plan who World Health Organization

xi

List of Tables 1 9 Core Treaties 2 2 The Protocols 2 3 Substance of the Protocols 3 4 The Treaty Bodies 3 5 Thailand’s relationship with the Core Human Rights Treaties 4 6 cedaw: Summary of Contents 20 7 crc: Summary of Contents 68 8 Declaration on Military Service 70 9 iccpr: Summary of Contents 141 10 Non-derogable Rights 143 11 Statistics of extrajudicial killings 147 12 Responding to the Human Rights Committee iccpr 153 13 cerd: Summary of Contents 195 14 cat: Summary of Contents 229 15 icescr: Summary of Contents 265 16 crpd: Summary of Contents 310 17 ced: Summary of Contents 329 18 cmw: Summary of Contents (General Provisions) 339 19  c mw Rights of all migrant workers (whether or not documented) and families: Articles 8–35: Part iii 340 20  c mw Rights of documented migrant workers and families: Articles 36–56: Part iv 341 21 ilo Conventions to which Thailand is a Party 343 22 Sustainable Development Goals (sdgs) 353 23 Targets impliedly linked with human rights under sdgs 354 24 Targets impliedly linked with human rights under sdgs 355 25 Targets impliedly linked with human rights under sdgs 356

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Human Rights Treaties and Thailand Introduction Although there were a number of treaties bearing on aspects of human rights prior to the Second World War, there has been a burgeoning of human rights standard-setting and related mechanisms, encapsulated by key treaties, since the inception of the un. “The Core Human Rights Treaties” in this system refers to nine multilateral treaties – “Conventions” – on human rights evolved under the aegis of the un since the 1960s.1 These have been supplemented by additional agreements, known as Protocols, which amend or add to the original treaties.

Core Human Rights Treaties

At the outset, admittedly, the terminology may seem rather confusing. The word “Treaty” is often used interchangeably with the term “‘Convention”; basically it means a binding international agreement between States, between States and international organizations and or between international organizations. According to the 1969 Vienna Convention on the Law of Treaties: per Article 1(a): “‘Treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”2 The definition is a starting point and not exhaustive. Internationally, there are also other treaties between States and international organizations such as the un, or between international organizations. There are various legal terms used to express these relationships; these include “Convention,” “Charter,” “Covenant,” “Protocol,” “Agreement” and “Treaty.” The term “Convention” is used to indicate that there are several parties ­involved (multilateral). These differ from the term “Declaration” which is used internationally to express non-binding resolutions, such as un Declarations. However, the latter may also embody, strengthen and or give rise to international customary law of a binding nature. This is exemplified, for example, by the 1948 Universal Declaration of Human Rights – long considered to be the genesis of international human rights standard setting which has also led to the evolution of concrete treaties.3 The nine key international agreements on human rights – the Core Human Rights Treaties – are as shown in Table 1. © faculty of law, chulalongkorn university, 2017 | doi 10.1163/9789004326675_002

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They have been supplemented by various Protocols as shown in Table 2. Many of the Protocols concern procedures for communications/complaints by individuals to the relevant human rights monitoring Committee, while some of them concern other issues as detailed in Table 2 and Table 3. Table 1

9 core treaties.

International Covenant on Civil and Political Rights (iccpr) 1966 International Covenant on Economic, Social and Cultural Rights (icescr) 1966 International Convention on the Elimination of All Forms of Racial Discrimination (cerd) 1965 Convention on the Elimination of All Forms of Discrimination against Women (cedaw) 1979 Convention on the Rights of the Child (crc) 1989 Convention against Torture and Other Cruel, Inhuman and Degrading Treatment (cat) 1984 Convention on the Rights of Persons with Disabilities (crpd) 2006 International Convention for the Protection of All Persons from Enforced Disappearance(ced) 2006 Convention on the Protection of the Rights of All Migrant Workers and of their Families (cmw) 1990 Source: Author’s Own Table Derived from OHCHR, THE CORE INTERNATIONAL HUMAN RIGHTS TREATIES. Table 2

The protocols.

Optional Protocol to the iccpr 1966 Second Optional Protocol to iccpr, aiming at the abolition of the death penalty 1989 Optional Protocol to the icescr 2008 Optional Protocol to the cedaw 1999 Optional Protocol to the crc on the sale of children, child prostitution and child pornography 2000 Optional Protocol to the crc on the involvement of children in armed conflict 2000 Optional Protocol to the crc on a communications procedure 2011 Optional Protocol to the cat 2002 Optional Protocol to the crpd 2006 Source: Author’s Own Table Derived from OHCHR, THE CORE INTERNATIONAL HUMAN RIGHTS TREATIES.

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The nine monitoring bodies set up under the core human rights treaties are listed in Table 4. In addition, the Protocol attached to the Convention against Torture has a sub-committee to monitor its implementation, with a key role to carry out visits to detention facilities having an impact also on preventing problems. Before the Second World War, Thailand was a party to a number of treaties which touched upon elements of human rights, e.g. the Convention against Table 3

Substance of the protocols.

Optional Protocol to the iccpr (individual communications) Second Optional Protocol to the iccpr (prohibition of capital punishment) Optional Protocol to the icescr (individual communications) Optional Protocol to the cedaw(individual communications) Optional Protocol to the crc (sale of children, child prostitution and child pornography) Optional Protocol to crc (children in armed conflict) Optional Protocol to crc (individual communications) Optional Protocol to the cat (visits by sub-committee to places of detention) Optional Protocol to the crpd (individual communications) Source: Author’s Own Table Derived from OHCHR, THE CORE INTERNATIONAL HUMAN RIGHTS TREATIES. Table 4

The treaty bodies.

iccpr – Human Rights Committee (hrc) icescr – Committee on Economic, Social and Cultural Right (escr Committee) cerd – Committee on the Elimination of Racial Discrimination (cerd Committee) cedaw – Committee on the Elimination of Discrimination against Women (cedaw Committee) crc – Committee on the Rights of the Child (crc Committee) cat – Committee against Torture (cat Committee) crpd – Committee on the Rights of Persons with Disabilities (crpd Committee) ced – Committee on Enforced Disappearances (ced Committee) cmw – Committee on the Protection of the Rights of Migrant Workers and Members of Their Families (cmw Committee) Source: Author’s Own Table Derived from OHCHR, THE CORE INTERNATIONAL HUMAN RIGHTS TREATIES.

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Trafficking in Women and Children and various treaties concerning warfare and humanitarian matters.4 With regard to the post Second World War treaties, Thailand has now (till mid-2015) become a party to seven of the core Conventions, through ratification(i.e. during the initial phase of making the Convention operational) or accession (i.e. after the Convention is fully operational), and signed one other treaty per Table 5 below. While ratification or accession implies full legal commitment by the country, the mere signature by the country indicates a political commitment which is not yet fully binding (until ratification or accession). Thailand has not yet signed nor ratified one of the nine core human rights treaties: the cmw. The country has also joined the cedaw Protocol (on women’s rights) which  opens the door to communications/complaints by individuals. The country has ratified the three Protocols attached to the Child Rights Convention so as to enable more specific monitoring of measures against the sale of children, child prostitution and child pornography, against the use of children in armed conflict, and on individual communications. The communications procedure is part of the process whereby the various monitoring bodies established under the human rights treaties can take complaints from individuals (and subject to conditions, from other member States) where Table 5

Thailand’s relationship with the core human rights treaties.

International Covenant on Civil and Political Rights (iccpr) – acceded (1997) International Covenant on Economic, Social and Cultural Rights (icescr) – acceded (1999) International Convention on Elimination of All Forms of Racial Discrimination (cerd) – acceded (2003) Convention on the Elimination of All Forms of Discrimination against Women (cedaw) – acceded (1985) Convention on the Rights of the Child (crc) – acceded (1992) Convention against Torture and Other Cruel, Inhuman and Degrading Treatment (cat) – acceded (2007) Convention on the Rights of Persons with Disabilities (crpd) – ratified (2008) International Convention for the Protection of All Persons from Enforced Disappearances (ced) – signed (2012) Source: Author’s Own Table Derived from OHCHR, THE CORE INTERNATIONAL HUMAN RIGHTS TREATIES and www.ohchr.org.

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5

local remedies have been exhausted, leading ultimately to r­ ecommendations from those bodies to pressure for changes at the national level to rectify violations.

Treaty-Making and Thailand

Why do countries become parties to an international treaty, especially on human rights? The self-evident answer is that they wish to be (seen to be) part of the international community, engage with international standards, and project a sense of responsibility to that community – possibly as a sign of civilization. Yet, in reality, there could be many other reasons, such as pressure from other countries, pressure from civil society or simply a ripe time for political commitment or a manifestation of political will on the part of a particular government. Thailand’s own engagement with human rights through the un Charter and the subsequent Universal Declaration of Human Rights (1948) was part and parcel of its aim to re-establish itself in the community of nations after great difficulties during the Second World War. When it later proceeded to become a party to the cedaw (the first of the human rights treaties to which it acceded), this was also due to global and national spread of the women’s movement and advocacy of women’s rights, and related pressures to commit to international/universal standards. On a more technical note, in the march of history, treaty-making in Thai practice, similarly to the practice of other countries, is seen very much as an executive act – it is the Government which signs the treaty on the part of the State.5 Internationally, that political commitment becomes truly enforceable in law where there is “ratification” of the treaty or “accession” to the treaty – a binding act at the international level. Globally, it is the Government acting on behalf of the State which ratifies a treaty. Depending upon the constitutional set-up of a State, that process may be paralleled by involvement and consultation of the national Parliament, and passage of a law through Parliament to accept the treaty as binding internally and/or transform it into national law. The latter process is also known as “ratification,” entailing the engagement of the legislative pillar at the national level. In the case of Thailand, in general terms, some but not all treaties have to be ratified by Parliament. Prior to the 2007 Constitution (overturned in 2014), three situations called for ratification through a national law integrating the treaty into Thai law through Parliament in each of these three instances: (1) where the treaty affected the jurisdiction of the State; (2) where the treaty affected the boundaries of the State; and (3) where the treaty needed to be

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implemented as law in Thailand. This was exemplified by Section 224 of the 1997 Constitution: Section 224 The King has the prerogative to conclude a peace treaty, armistice and other treaties with other countries or international organizations. A treaty which provides for a change in the Thai territories or the jurisdiction of the State or requires the enactment of an Act for its implementation must be approved by the National Assembly.6 Under traditional Thai practice, if a treaty is already consistent with Thai laws, it does not need to be ratified by Parliament. However, without ratification through Parliament, it cannot be invoked directly in the domestic courts as binding on those courts. The approach then and now is dualistic: an international treaty is binding on the courts where it has been transformed into a national law, e.g. through an Act of Parliament. International treaties are thus not automatically binding in Thailand. From 2007, there have been more stringent conditions for treaty-making which require the executive branch to consult Parliament closely prior to signature to and ratification of a treaty at the international level where the treaty has a substantial impact on the economic, social and or security situation of the country. This was first emphasized in Section 190 of the 2007 Constitution as amended: Section 190 The King shall be invested with the prerogative to conclude the treaties of peace, treaties of armistice and other treaties with the foreign states or international organizations. A treaty must be approved by the National Assembly if its provision would result in a change of the Thai territory or extraterritorial area over which Thailand is competent to exercise sovereignty in virtue of another treaty or international law, or its implementation requires the enactment of an Act, or it would extensively impact the national economic or social security, or it would considerably bind the national trade, investment or budget. In this respect, the National Assembly must complete its deliberations within sixty days from its receipt of the said matter. Prior to undertaking any action so as to engage in a treaty under paragraph 2 with a foreign state or international organisation, the Council of Ministers must disclose information concerned to the public, hold the  public hearings and address an explanation as to such treaty to

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the  National Assembly. In this regard, the Council of Ministers shall also submit the negotiation framework to the National Assembly for approval. Upon having signed a treaty referred to in paragraph 2, the Council of Ministers, before declaring an intention to be bound therewith, must make the contents thereof available to the public and, in cases the implementation thereof impacts the public or small and medium entrepreneurs, must expeditiously, appropriately and fairly resolve or remedy the impacts incurred by the persons concerned. There shall be a law determining the types, negotiation frameworks, process and procedure of concluding the treaties extensively impacting the national economic or social security or considerably binding the ­national trade, investment or budget, and of resolving or remedy the impacts incurred by the persons concerned in consequence of the implementation of the said treaty; prescribed, however, that regards shall be paid to the fairness between the persons benefited and impacted by such implementation and the general public. Where arises a problem dealing with paragraph 2, the problem shall be referred to the Constitutional Court for decision. The provisions of Section 154 (1) shall apply mutatis mutandis to the making of such referral to the Constitutional Court.7 The 2007 Constitution was overturned by a coup in 2014 and the interim Constitution of the same year follows the said Section 190 in spirit, as follows (on treaty making): Section 23 The King has the prerogative to conclude a peace treaty, armistice and other treaties with other States or international organizations. A treaty which provides for a change of the territories of Thailand or the external territories that Thailand has sovereign rights or jurisdiction thereon under any treaty or an international law, or requires an enactment of an Act for its implementation or has wide scale effects on economic or social security of the country, shall be approved by the National Legislative Assembly. In this case, the National Legislative Assembly shall complete its deliberation within sixty days as from the date of receipt of such matter. The treaty with wide scale effects on economic or social security of the country under paragraph two means a treaty related to free trade or customs cooperation area, to the use of natural resources, to waive the

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rights in any natural resources of the country, wholly or partly, or other matters as prescribed by law. If there is in doubt whether any treaty is a treaty under paragraph two or paragraph three, the Council of Ministers may request the Constitutional Court to make a decision thereon. In this case, the Constitutional Court shall have a decision within thirty days as from the date of receipt of the request.8 How has this affected the process of Thailand becoming a party to the core human rights treaties? The answer depends on three phases: pre-2007, 2007–2014, and post 2014. Before the 2007 Constitution, out of the seven core treaties to which Thailand is now a party, Thailand had ratified or acceded to six treaties – cedaw, crc, iccpr, icescr, cerd, cat – at the international level, without ratification through a law in/through Parliament at the national level. In strict law, those treaties cannot be cited as binding directly in the courts. However, many national laws already reflect those treaties and their implementation is an indirect way of applying the treaties through national legislation, as seen in the Chapters that follow. With regard to the period 2007 until 2014, two treaties are pertinent: the Convention on the Rights of Persons with Disabilities (crpd) and the Convention for the Protection of All Persons from Enforced Disappearances (ced). The country became a party to the crpd in 2008; at the time, since there already existed various national laws applying the contents of the crpd, there was no need to have a specific law in Parliament to ratify the treaty at the national level.9 With regard to the ced, the country signed it in 2012 but has ­not yet ratified it. As the ced affects the legal situation in the country substantially, requiring various changes of the law with direct reforms, it needs ratification by Parliament. At the time of signing the ced, the country was under the 2007 Constitution and Section  190 would have applied. However, there is  now  the third phase: the 2007 Constitution was overturned in 2014 and there is an interim Constitution. The latter does not provide details of the relationship between treaties and ratification by Parliament, subject to the section cited above, and it awaits a new Constitution projected for post-2015 phase. In the meantime, one can presume perhaps that the existing custom, based largely on Section 190 (via Section 23 of the current interim constitution), applies. With regard to the Protocols to which the country has become a party, the cedaw Protocol was ratified at the international level without passage of a law in Parliament in 2000. Two of the crc Protocols – on the sale of children

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and on children in armed conflict, acceded to by Thailand in 2006, followed suit. They did not pass through Parliament either. The relationship with those three Protocols preceded the coming into force of the 2007 Constitution. With regard to the third crc Protocol – on individual communications to the crc Committee where there are no local remedies available, the country became the first country globally to ratify the Protocol in 2012. As the authorities felt that this Protocol did not need an implementing law in Thailand, the Protocol was ratified without going through the Thai Parliament. It can be observed that as the 2007 Constitution was overturned in 2014, the  situation for membership of other treaties now is in a wait-and-see phase until a full Constitution is adopted. At the time of editing this study in 2015, a  new draft Constitution had been completed but was rejected by the authorities. Of course, in terms of good faith, with or without a national law to implement a human rights convention, there is still an international obligation not to undermine the treaty. Interestingly, as will be seen later, some domestic courts have been quite active in referring to international treaties, even if there is no law to implement them directly in the country. From the angle of a State’s commitment to an international treaty on human rights, there are key obligations which follow. These include the need for the State to raise its national standards to international standards, adopt implementation measures, assess its implementation of the Convention, report periodically to the international monitoring body set up at the international level to oversee its global implementation and take follow-up measures. Human rights Conventions provide for dialogue between the State concerned and the monitoring Committee concerned. This leads to recommendations from the latter which the former should implement at the national level. While these recommendations are not tantamount to judgements, as the Committees are not courts of law, there is political and moral pressure for the State to comply, and the cycle of reporting and assessment (which is ongoing) adds to the sustained influence for progressive compliance. From the angle of human rights implementation, whether or not a country is a party to a human rights treaty, a number of actions are generally needed: these include human rights sensitive laws, policies, programmes, enforcement measures such as through court cases, mechanisms/personnel, resources, education/capacity development, information/monitoring, mobilization/ networking, and a participatory process open to reforms. However, the value added of the membership of a treaty is that it opens the door to universal and uniform interpretation of human rights principles, international and national engagement and cooperation in the process, and a transparent and objective

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international forum for assessing implementation, with a view to raising national standards to international standards. The latter are basic minimum, not maximum, standards to which all States should aspire. At this juncture, another important element of treaty-making is pertinent: the possibility of a country entering “reservations” when it becomes a party to a treaty. This is an acceptable part of international law making, but international law also indicates that those reservations which are incompatible with the object and purpose of a treaty cannot be made.10 In essence, the entering of a reservation is tantamount to an expression, a statement from the State concerned that while it wants to become a party to a treaty, it is hesitant towards and or is not yet ready to accept some parts of the treaty. Thus it puts a condition or various conditions – alias “­reservations” – on the treaty-making so as to opt-out of various provisions or qualify its ­acceptance of the treaty. At times, there is variation on the theme. Some States, including Thailand, make various “interpretative declarations” when becoming a party to a treaty, principally to indicate that in regard to one (or more) provision of the treaty, the State interprets it to be consistent with national law and or to recognize that the national law may not yet be attuned to the international standard set by the treaty.11 These declarations may be a gentle way of saying that the national law is a little different from the standard (thus needing time to gestate towards the international standard), or they may indicate a harder edge that the State does not yet accept the standard concerned. In the eyes of the treaty monitoring bodies, these declarations may be characterized as “reservations,” although under another name. As will be seen in the later Chapters, the country has a tendency to enter various reservations and or interpretative declarations when becoming a party to human rights treaties – which raises the issue of whether they are necessary and whether they should be withdrawn. Situation At this juncture, the human rights situation in Thailand deserves to be ­noted – to set the scene for that which is to come. The Chapters which follow will delve into the relationship between the country and each of the human rights treaties referred to above, chronologically in terms of the reporting process per treaty. Perhaps the most salient development in 2014 was that a coup d’etat took place on 22 May, overturning the country’s 18th Constitution (2007) and the elected civilian government.12 An interim Constitution was promulgated on

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22 July 2014, with a roadmap aimed at a new Constitution in 2015.13 The coup had been preceded by months of huge street demonstrations against alleged maladministration on the part the civilian Government and authorities which were then in power. In fact, spurts of instability and violence had been plaguing the country for several years due to a tug of war between various political colours, vested interests and factions. Some of the key human rights issues today include the following: Democracy’s Dilemma That human rights are closely linked with democracy and development there can be no doubt. The country has been searching for a democratic narrative since 1932 when the first Constitution was adopted in the country. The country has been through some twenty coups and is now in the midst of its temporary Constitution. Some of the more recent coups and their aftermath invite reflection. In 1991, a coup toppled a civilian administration which was enmeshed in allegations of corruption. Yet the military government which was set up in 1992 was also faced with strong reaction from the civilian population. Massive civilian street demonstrations against military dominance took place in 1992 and these helped to drive the military government from power, with bloodshed en route. This opened the door to civilian rule – and the most democratic Constitution to date: the 1997 Constitution was drawn up with broad people’s participation from all over the country. Yet, for a country which had previously witnessed many weak civilian governments, the elections that followed gave rise to a civilian administration under an ultra-strong populistic leader who would increasingly be seen and rejected by some groups as brimming with alleged vested interests and omnipotence. This later led to a coup in 2006, followed by a new Constitution in 2007 which imposed more checks and balances on the executive branch of Government. The toppled leader went into exile and was also found by a local court in Thailand to be guilty of abusing his power to help his spouse purchase a piece of land.14 Ironically perhaps, even with the new Constitution in 2007, it was the political party close to that leader which won the subsequent elections. This was followed by a number of short-lived civilian administrations in an atmosphere of instability, leading ultimately to more street clashes and imposition of a state of emergency in Bangkok in 2010. After that, elections led again to the return to power of the political party close to the exiled leader, followed by further massive unrest between the various colours in favour of or against that leader. A coup took place in May 2014 which ejected the then civilian Government in the midst of allegations of abuse of power and maladministration.

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There followed an interim Constitution and roadmap with various bodies to help draft and vet a new Constitution, initially projected for the middle of 2015. However, the draft Constitution was rejected in the middle of 2015 and the drafting process has to start again, with elections further delayed. The atmosphere is now oriented towards more limitations imposed on various rights and freedoms. Added to this is the fact that many of the recent civilian administrations have been treated with much circumspection (if not mistrust) by the uniformed authorities, due to their continuing links with the exiled leader and various vested interests. Constraints on Civil and Political Rights While the country has been through several phases of experimenting with the democratic process, various constraints on civil and political rights are longstanding, at times accentuated by coups. First, there is the ubiquitous nature of national security laws which have been used by civilian and military governments to impose measures limiting the exercise of rights. These include many laws referred to below, such as the Martial Law Act 1915, the Emergency Decree 2005, the National Security Act 2008 and various provisions of the Criminal Code.15 The Emergency Decree, for example, has been criticized for opening the door to detention of a suspect without access to the courts for 30 days, ­extended for another 7 days under the Martial law, replete with provisions in the law giving rise to impunity. In addition to opening the door to long spells of detention of suspects, these laws can also limit freedom of expression, ­peaceful assembly and association. They have been the subject of intense discussions between Thailand and the various monitoring committees under the core human rights treaties, such as iccpr, crc, cerd, cat,and icescr.16 They have been compounded by use of Section 44 of the interim Constitution which gives broad discretion to the topmost authorities to adopt measures without going through the legislative pillar. There have also been questions concerning the application of S­ ection 112 of the Criminal Code, prohibiting lese majeste, especially as it gives rise to the ­imposition of mandatory sentences from 3 to 15 years imprisonment. ­Under this section, anyone can initiate a criminal action against a person a­ ccused of committing the crime; this raises the issue of how and who would screen ­prosecutions, as well as how to prevent the provision from being used for p ­ olitical interests.17 This is expanded by the criminal provision of the C ­ omputer Crimes Act 2007 which may impose additional constraints on freedom of e­ xpression18 as well as indictments for sedition under the Criminal Code. Immediately after the May 2014 incident, several leaders of various political parties were detained, generally for a short time for a discourse with the

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­ niformed authorities. Subsequently, a number of those who were seen as u questioning the power of the authorities have been called in for “attitudinal adjustment.” Those who fail to report to the authorities are arrested, detained, or have their assets frozen.19 Under martial law and subsequent orders, it is also forbidden for more than five people to gather together publicly unless permission is sought from the authorities.20 Violence in Southern Thailand The population of the Southern part of the country is predominantly Muslim whose mother tongue is Pattani Malayu; their local script is Yawee which is similar to Arabic.21 Throughout the past century, attempts to assimilate that region under Bangkok’s centralized rule have led to periodic violence, the most recent phase starting a decade ago. The most extreme arm of the opposition from the South advocates separatism, while the general impression is that the mass of the population is more concerned with daily life needs and the desire for peace. The various security laws mentioned above have been applied extensively in the South, but the situation has not stabilized.22 There are daily occurrences of violence on the part of insurgents and the authorities, taking its toll particularly among the innocent civilian population. Talks of reconciliation have been met with an impasse, while negotiations for peace are ongoing but have so far not yielded fruit. “Populism” with Economic, Social and Cultural Rights One of the interesting developments in Thailand in recent years is how ­economic, social and cultural rights have been responded to – by populist policies on the part of those who are in power. For example, universal health care was introduced at the turn of the millennium by the Government under the leader who would later be toppled by a coup and then go into exile.23 The health care policy has been lauded internationally. When it was introduced, that health care was coupled with other measures as part of anti-poverty action, such as the setting up of village funds from which villagers could borrow for development activities; debt moratorium for farmers; and incentives for small scale industries with accent on “one tambon (sub-district), one product.” Yet, some strands of populism have given rise to much politicization and discontent. The most recent case in point was the rice subsidy scheme of the recent administration prior to its toppling by the 2014 coup. In essence, that policy gave farmers a guaranteed price for their rice production – much higher than the world price, and the executive branch itself became a monopoly in buying and stockpiling the rice prior to possible sale of the rice to other markets.24 This

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policy gave rise to the critique that it might be an indirect way of building up a political constituency for the party in power, among farmers particularly in the north and northeastern part of Thailand (a stronghold for that party and the exiled leader), even though it might not have been a sound policy in economic terms. The situation was not helped by the huge stockpiles and unsold rice accumulated by the authorities, and the billions of public money spent on shouldering the intervention price of the rice bought from the farmers. In 2014, investigations were pending, involving various allegations of malfeasance and possibly resulting in law enforcement measures. At the beginning of 2015, the premier who had been ejected by the 2014 coup was impeached on this issue by the authorities and various court cases were pending in the middle of 2015.25 Community Rights/Environmental Challenges The concept of community rights – rights inherent in the community as a collectivity- to protect their resources, particularly the natural environment, emerged with the 1997 Constitution.26 The Constitution elaborated upon the need for environmental impact assessment before environmental projects was undertaken, together with public hearings and measures to mitigate harm to the environment. The 2007 Constitution went further by requiring health impact assessment of activities which might harm the environment and related communities. This has led to a number of court cases initiated by communities to stop or prevent activities detrimental to the environment. A typical case in point is the litigation launched by villagers against a range of industrial activities near their homes. The judiciary has intervened to grant an injunction against the activities of dozens of industries nearby, and this has resulted in a series of negotiations compelling the industries to adopt measures to contain the damage.27 The struggle is ongoing. Another angle of the contestation is between the authorities and communities which have lived in forest areas for a long time but who find themselves later classified as having encroached upon national forest land or nature reserves. The challenge here is that the application of various national laws overlaps with land and forest areas occupied traditionally by various communities. This has also led to various court cases and these have been raised by various committees attached to the human right treaties discussed below (such as the cerd, cat Committees and most recently in 2015, the icescr ­Committee).28 At times, there is added violence, especially where the leader of the ­communities is reported missing under suspicious circumstances, with the strong probability of transgressions, such as enforced disappearances, taking place against some activists from these communities.

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Particular Groups: Vulnerability Factor Various groups are of special concern and, in addition to being encompassed by various general human rights treaties, they are also covered by specific human rights treaties (discussed below) to which Thailand is a party – women, children, persons with disabilities, and victims of racial discrimination and of torture or cruel treatment. Other groups covered by treaties (or related instruments) to which the country is not yet a party include refugees, victims of enforced disappearances, stateless persons and migrant workers.29 The value added of specific treaties on these groups and a country’s membership of the treaties is the detailed coverage offered by the treaties in terms of monitoring, related transparency and the need for particular follow-up actions. This helps to harness the measures needed to address the vulnerability factor where the groups are faced with a variety of risks and dangers, such as discrimination, abuse, exploitation and violence. Transparency/Accountability/Responsibility A key issue facing the administration of the country – whether civilian or ­military – is how to make the actions of those in power transparent and accountable to the populace. The issue of corruption is thus all pervasive. This is compounded by the collusion and clientelism which come with the longstanding patronage system, found from the top to the bottom and vice versa. The 1997 and 2007 Constitutions introduced a variety of mechanisms and measures to try to sanitize the system, but the results have been modest.30 For example, all cabinet ministers must declare their assets. A variety of mechan­ isms, such as an Anti-Corruption Commission and a special division of the Supreme Court (on political offenders) which is vested with the power to deal with the misconduct or malpractices of politicians, have been set up to monitor their actions. The 2007 Constitution also imposed a five year ban on the executives of political parties in the case of misconduct, whether from among themselves or other members of the party, and the political party itself could be disbanded by the courts due to malfeasance on the part of a party member. Despite these measures, politicians in power are looked upon with mistrust by various sectors of the public, and this has also been used by persons in uniform to justify intervention, claiming the need to compel politicians to clean up their act. Yet, there are broader issues at play which are structural and ­systemic by nature, including the need to improve the selection process of law enforcers, the need to provide adequate remuneration, the need for public participation in monitoring their performance, and the need for accountability in the face of transgressions.

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Implementation “Quagmire” A final initial note is that like in many countries, Thailand already has a variety of laws and policies which help to promote and protect human rights, in principle (it has even a national human rights action plan)31 but there is at times poor implementation. These will be viewed through the lens of the human rights treaties to be discussed in later chapters. While some of the laws still need improvement, often it is the deficient practice or lax implementation which is amiss, thus posing a major challenge to the upholding of human rights at the national and local levels. The conundrum is enmeshed in the fact that ultimately human rights have to interface with power and the abuse of power. Thus, a series of measures are required as checks and balances against abuse of power – not only law but more. As voiced earlier, various mechanisms and processes may also be needed to counterbalance the exercise of power by those in power. Likewise, a strong network and mobilization among civil society is essential as a counterweight to the vested interests which are insidiously at play at various levels of decision-making. Appropriately, the implementation “quagmire” requires a variety of proc­ esses and modalities to prevent abuses, to protect rights and to provide remedies. While, of course, the primary responsibility of human rights protection rests with the State, the international framework and pillars embodied in the core human rights treaties, their monitoring committees and the attendant supervision offer an important linchpin for the checks and balances needed. An objective assessment and rationalization at the international level is thus all the more necessary in the face of subjective measures and tendentious selfjustification at the national level, thus inviting improvements and compliance with universal standards. It is now proposed to examine Thailand’s relationship with each of the human rights treaties – chronologically in terms of the date/time of membership and reporting to international monitoring committees under the relevant human right treaties. This is coupled with the message that although the relationship with each treaty is considered in a separate Chapter, all the treaties and the rest of the human rights system are interwoven and need to be viewed as an integrated prism. 1 For text, see: www.ohchr.org. The Office of the United Nations (un) High Commissioner for Human Rights (ohchr), The Core International Human Rights Treaties (New York/Geneva: un, 2014). See further: Henry J. Steiner, Philip Alston and Ryan Goodman, International Human Rights in Context (Oxford: Oxford University Press, 2008); Olivier de Schutter, International Human Rights Law (Cambridge: Cambridge University Press, 2014).

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For general information on human rights in South-east Asia, including Thailand, see un web at: bangkok.ohchr.org/programme/ohchr-sear.aspx. 2 See Vienna Convention on the Law of Treaties 1969 on the issue of treaties between States: https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232 -­English.pdf. In regard to the treaties between States and international organizations, and between two or more international organizations, there is the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations 1986: http://legal.un.org/ilc/texts/instruments/english/conventions/1_2_1986 .pdf. Also Ian.M. Brownlie, Principles of Public International Law (Oxford: Clarendon Press, 2012); Arnold.D. McNair, The Law of Treaties (Oxford: Clarendon Press, 1961); Enno Cannizaro (ed.), The Law of Treaties beyond the Vienna Convention (Oxford: Oxford University Press, 2011). 3 Universal Declaration of Human Rights: supra note 1. 4 For pre-second world war Thailand, see: Kulpol Polwan, “Human Rights in the Criminal Justice System according to un Standards (SITTIMANUSYACHON NAI KRABUANKAN TANG AYA TAM MATRATARN SAHAPRACHACHART),” SRI PATUM Law Journal, Year 1 (1) (June 2551), 39–64; 41–43; Banjerd Sinkaneti et al., Monitoring the Constitutional Legitimacy of Legal Provisions Affecting Human Rights (GARN TRUAT KWAM CHOP DUAY RATTHATHAMMANUN KONG BOT BANYAT HANG KOTMAI TI KRATOP TOR SITTIMANUSYACHON) (Bangkok: Office of the Constitutional Court, b.e. 2555), pp. 209–11 (in Thai.). 5 For recent analysis, see: Sorayut Chasombat (2012), Treaty – Making Process in Thailand under Article 190 of the Constitution b.e. 2550. https://caishenli.files.wordpress.com/2012/05/ treaty-making-process-under-article-190.pdf (accessed 19 January 2016). 6 Section 224 of the 1997 Constitution. AsianLII.org [homepage on the internet], Constitution of the Kingdom of Thailand 1997, http://www.asianlii.org/th/legis/const/1997/1.html#S224, 1997 (accessed 21 October 2015). 7 Constitution of Thailand 2007, background to Section 190. En.wikisource.org [homepage on the internet], Translation: Amendment the Constitution of kingdom of Thailand (No. 2), Buddhist Era 2554 (2011), https://en.wikisource .org/wiki/Translation:Amendment_to_the_Constitution_of_the_Kingdom_of_Thailand _(No._2),_Buddhist_Era_2554_(2011), 13 November 2013 (accessed 13 November 2015). 8 Isranews.org [homepage on the internet], Translation of Constitution of the Kingdom of Thailand (Interim) 2014, http://www.isranews.org/isranews-article/item/31533-translation .html, 2014 (accessed 21 October 2015). 9 Thailand’s initial report under the crpd has been published by the un and the country awaits its first dialogue with the relevant monitoring committee. See later Chapter of this study on this treaty. 10 On reservations, see Article 1(d) of the Vienna Convention on the Law of Treaties, supra note 2: “Reservation means a unilateral statement, however phrased or named, made by a State when signing, ratifying, accepting, approving, acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State.” Article 19 of this Convention states that reservations incompatible

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with the object and purpose of the treaty cannot be made. See also Ian M. Brownlie, supra note 2. 11 Per the International Law Commission: “Interpretative Declaration means a unilateral statement, however phrased or named, made by a State or an international organization, whereby the State or that organization purports to specify or clarify the meaning or scope or a treaty or of certain of its provisions.”: in Text of the Guide to Practice on the Reservations to Treaties adopted by the Commission on at its sixty third session, Point 1(2): Report of the International Law Commission Sixty Third Session (26 April-3 June, 4 July-12 August 2011), un Doc. gaor Sixty Sixth Session A/66/10/Add.1 (2011), p. 62. 12 See further: Vitit Muntarbhorn, “Lessons of Black May 1992 and 2006 Coup,” Bangkok Post (23 May 2014), p. 8. 13 Interim Constitution, Royal Gazette, Vol.131 Part 55 Kor (22 July b.e. 2557), pp. 1–17 (in Thai). 14 The supreme court’s criminal division for person holding political positions Ruling 1/2550 (2007), Attorney General v Thaksin Shinawatra and Khunying Pojamarn Shinawatra (17 September b.e. 2551) (2008). Ratchakitcha.soc.go.th [homepage on the internet], The supreme court’s criminal division for person holding political positions Ruling 1/2550, http://www.ratchakitcha.soc .go.th/DATA/PDF/2551/A/126/1.PDF, 2007 (accessed 21 October 2015). 15 On national security laws: International Commission of Jurists, Thailand’s Internal Security Act: Risking the Rule of Law? (Bangkok: International Commission of Jurists, 2010); Concluding Observations of the Human Rights Committee: Thailand.un. Doc. CCPR/ CO/84/THA (July 2005). 16 See iccpr, cerd, cat, crc below re security laws in later Chapters of this study. 17 See further: David Streckfuss, Truth on Trial in Thailand: Defamation, Treason and Lèsemajesté, (London: Routledge, 2011). 18 Computer Crimes Act, Royal Gazette, Vol. 124 Part 27 Kor (18 June b.e. 2550), pp. 4–13 (in Thai). 19 On attitudinal adjustment, see: BBC.com [Homepage on the internet], Thailand journalist detained for “attitude adjustment,” http://www.bbc.com/news/world-asia-34249428, 14 September 2015 (accessed 13 November 2015). 20 Martial Law Act (b.e. 2457), Royal Gazette, Vol. 31, Part Kor (13 September b.e. 2457) (1914), pp. 388–395 (in Thai). 21 See further: Thaiembassy.org [Homepage on the internet], Muslim in Thailand, http:// www.thaiembassy.org/riyadh/th/organize/29025-Muslim-in-Thailand.html (accessed 13 ­November 2015). 22 Re Southern situation: see, for example, Crisis Watch, Thailand: The Evolving Conflict in the South, Asia Report No.241 (11 December 2012). http://www.crisisgroup.org/en/regions/ asia/south-east-asia/thailand.aspx (accessed 19 January 2016). 23 On Thailand’s 30 baht medical scheme, see: Simon Ingram [bbc Bangkok correspondent], Thailand launches $1 health scheme, http://news.bbc.co.uk/2/hi/asia-pacific/1572632.stm, 1 October 2001 (accessed 13 ­November 2015).

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25

26

27

28

29

30

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19

On the rice stockpile issue, see: ireport.cnn.com [homepage on the internet], Get to Know Thai Rice Scheme Policy, http://ireport.cnn.com/docs/DOC-1092847, 21 February 2014 (accessed 13 November 2015). On the impeachment issue, see: Bbc.com [homepage on the internet], Thailand impeaches Yingluck Shinawatra over rice scheme, http://www.bbc.com/news/world-asia-30928835, 23 January 2015 (accessed 6 November 2015). Bangkokpost.com [homepage on the internet], Court accepts Yingluck rice case for trial, http://www.bangkokpost.com/news/politics/501910/court-accepts-yingluck-ricecase-for-trial, 19 March 2015 (accessed 21 October 2015). The notion of community rights was first propounded by the 1997 Constitution. See further: Law Editorial Board (KONG BANNATIKARN SUMNAK KOTMAI), “Rights and Freedoms under the Thai Constitution: Concepts and Practices” (LAK SITTI LAE SERIPARB TAM RATTHATHAMMANUN HANG RACHA-ANACHAKTHAI NAEW KWAM KID LAE PARK PRATHIBAT, JULNITI Journal, Year 8(1) (January b.e. 2554), pp. 1–56; 18 (in Thai). For the range of environment cases concerning the Maptaput area in Eastern Thailand: see, for example, Administrative Court judgement (Khadi Mai Lek Dang) 1352/2553: (2  September b.e. 2553). See also comment by Saknarong Mongkol, Impact of the Judgement in Maptaput Case (PON SATUEN JAK KAMPIPAKSA KHADI MAPTAPUT), 23 ­October b.e. 2553: www.pub.law-net (in Thai). For a key land case raised by the cerd Committee: Constitutional Court case 33/2554 (23 November b.e. 2554): National Human Rights Commission of Thailand submission to the Constitutional Court to seek decision per article 257(2) of the Constitution on the effect of the National Parks Act b.e. 2504 Article 6 on human rights and the problem concerning its compatibility with sections 66 and 67 of the Constitution. See later Chapter of this study on the cerd. For example the 1951 Convention on the Status of Refugees and its 1967 Protocol, the 1954 and 1961 Conventions on Statelessness, and the 1990 Convention on the rights of migrant workers, coupled with a number of International Labour Organization (ilo) ­related treaties. After the coup in 2014, the drafting of a new Constitution was very much driven by an anti-corruption drive. Interestingly, the country is also need a State party to the un Convention against corruption which is discussed as part of the implementation of human rights in the later chapters of this book. Third National Human Rights Action Plan (2014–18) (Bangkok: Ministry of Justice, 2014).

chapter 2

The Convention on the Elimination of All Forms of Discrimination against Women (cedaw) and Thailand Introduction The cedaw came into existence in 1979, and it was the first of the nine core ­human rights treaties to which Thailand became a party after the Second World War.1 Essentially, the cedaw contains stipulations which all countries should follow, as basic minimum standards, in terms of action to overcome gender based discrimination at the national level. The cedaw has 16 substantive provisions, the other provisions being on procedural issues such as the role of the cedaw Committee and the reporting process by member States. A summary of key provisions is seen in Table 6. The substantive provisions thus cover these elements: a definition of discrimination as a yardstick for States to follow(Article 1); the need for Table 6

cedaw: Summary of contents.

Article 1: definition of discrimination Article 2: guarantees in law Article 3: economic, social and cultural rights Article 4: temporary measures Article 5: stereotypes Article 6: sexual exploitation Article 7: political office Article 8: international organizations Article 9: nationality Article 10: education Article 11: employment Article 13: health Article 14: benefits Article 15: contracts Article16 : family matters Source: Author’s Own Table Derived from OHCHR, THE CORE INTERNATIONAL ­H UMAN RIGHTS TREATIES.

© faculty of law, chulalongkorn university, 2017 | doi 10.1163/9789004326675_003

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guarantees of women’s rights in national constitutions and other laws (Article 2); a range of rights in the political, social, economic and cultural fields (Article 3); the possibility of temporary special measures to help elevate the status of women (Article 4); measures against stereotypes and in favour of family education (Article 5); action against trafficking in women and exploitation of ­prostitution (Article 6); elimination of discrimination in public and political office (Article 7); access to international organizations (Article 8); equal rights with men in regard to acquisition, change or retention of nationality (Article 9); equal rights with men in regard to education (Article 10); elimination of discrimination in employment (Article 11); elimination of discrimination in relation to health care (Article 12); equal rights concerning family benefits, access to credit and sports (Article 13); attention to the needs of rural women (Article 14); equal capacity in regard to contracts (Article 15); elimination of discrimination in regard to family matters (Article 16). Thailand became a party to the cedaw in 1985. At the time of accession, the country made the following declaration: The Royal Thai Government wishes to express its understanding that the purposes of the Convention are to eliminate discrimination against women and to accord to every person, men and women alike, equality before the law, and are in accordance with the principles prescribed by the Constitution of the Kingdom of Thailand.2 This was coupled with these reservations: 1. In all matters which concern national security, maintenance of public order and service or employment in the military or paramilitary forces, the Royal Thai Government reserves its right to apply the provisions of the Convention on the Elimination of All Forms of Discrimination against Women in particular Article 7 and 10 only within the limits established by national laws, regulations and practices. 2. With regard to Article 9, paragraph 2 and Article 11, paragraph 1(b) as far as night work of women and special protection of women are concerned, the Royal Thai Government considers that application of the said provisions shall be subject to the limits and criteria established by national laws, regulations and practices. 3. The Royal Thai Government does not consider itself bound by the provisions of Article 15, paragraph 3, Article 16 and Article 29, paragraph 1, of the Convention.3

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In essence, the country entered seven reservations. As noted by the country’s initial report discussed below: Thailand has not agreed to be bound by the following provisions: – The provision that stipulates non-discrimination in regard to public office and public function at all levels of government; – The provision that stipulates non-discrimination in regard to access to education; – The provision that stipulates that women shall have equal rights with men with respect to the nationality of their children; – The provision that stipulates the same opportunities in employment for men and women; – The provision that stipulates that contracts restricting the legal capacity for women shall be void; – The provision that stipulates equal rights for men and women with regard to marital matters; – The provision that confers jurisdiction upon the International Court of Justice to deal with disputes concerning the Convention. These reservations indicate that in terms of approach, international principles are subjected to considerations of existing national laws and practices. How to ensure consistency between them in future remains a constant challenge.4 The large number of reservations signaled the approach taken at the outset: unless the national law concerning each provision of the cedaw was compliant with the cedaw, a reservation would be entered to qualify the country’s commitment to the Convention – it was understood that this would provide leeway for future adjustments without yet being fully bound by the relevant provision of the treaty and exempt the country from the full glare of the Convention. On reflection, the approach taken was perhaps too cautious and may have had the opposite effect. Instead of the reservations shielding Thailand from international scrutiny, they led to more interest and focus on the reservations than expected – as though the reservations were hiding a kind of glaring loophole. The international community would thus pick upon these reservations as a kind of Thailand’s blind spot, even though, in reality, the situation at the national level might have been better than expected (see in particular, the cedaw Committee comments below). En passant, it may observed also that no human rights treaty expects a country to have a perfect record – certainly at least, not at the time of ratification or accession. Adjustments can thus be taken step-by-step in the

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realization of the provisions of the treaty, thereby opening the door to avoid the entering of reservations which dilute the impact of the treaty at the national level.

Reporting Process

The country has been through three phases, with reports submitted to the cedaw Committee, three dialogues with the Committee and three sets of recommendations from the Committee as follows: – Phase 1: Initial Report by Thailand in 1987, followed by cedaw Committee consideration of the report and Concluding Observations in 1990;5 – Phase 2: Combined Second and Third Periodic Report by Thailand in 1993, followed by cedaw consideration of the report and Concluding Observations in 1999.6 – Phase 3: Combined Third and Fourth Periodic Report by Thailand in 2004, followed by cedaw consideration of the report and Concluding Observations in 2006.7 These are considered chronologically below, leading to general observations at the end of the Chapter with a view to the future. Phase 1: Implementation The initial report of the country captured the situation in 1987 which was also influenced by the Forward looking Strategies for the Advancement of Women approved at the World Conference to review and appraise the Achievements of the un Decade for Women in 1985. The Constitution applicable at time was the 1978 Constitution. The country was also at the beginning of its 6th National Economic and Social Development Plan (1987–91), coupled with a 20 year long term women’s development plan (1982–2001). A national institution had just been set up in the form of the National Commission on Women’s Affairs. (ncwa) The country’s report responded by giving a reply to each of the cedaw’s provisions sequentially, and this pattern has been followed in all the subsequent reports from Thailand. Highlights included the following: 1.

With regard to implementation of Article 1 of the Convention, the country admitted in the report that there was no national definition of the term “discrimination.”8

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2.

In regard to Article 2’s call for integrating equal rights into the Constitution and other laws, the report intimated that: Although the 1974 Constitution provided specifically for equality between “men” and “women,” the current Constitution of 1978 merely refers to equality for all “persons” (Section 22). Although some would ­prefer express use of the term “women” in regard to equality between the sexes, this is absent from the current Constitution. However, despite this absence, it may be presumed that the Constitution recognizes equality ­between the sexes. Two clear instances where discriminatory laws have been repealed in recent years concern the Ministry of Interior and the Ministry of Justice. As a result of the equality between men and women clause in the 1974 Constitution, these elements of discrimination were eliminated: Ministry of Interior Regulations prohibiting women from becoming public prosecutors and Ministry of Justice Regulations prohibiting women from becoming judges. However, no other reforms related to elimination of sex discrimination have yet taken place since Thailand’s accession to the Convention. There is still no specific law stipulating measures against sex discrimination. It is thus difficult to supervise against de facto discrimination. Likewise, it may be said that the judiciary has not played a significant role in applying sanctions against such discrimination so far.9 On the question of Article 3’s advocacy of action in the political, social, economic and cultural fields, the report noted the presence of various ­national plans on women’s development, especially the 6th National Plan and the 20 Long term Women’s Development Plan.10 The latter stipulated various indicators to indicate progress, e.g. to encourage at least 30% women’s participation in executive and policy making positions at the national level. In following the long term plan, the 6th Plan underlined the promotion of women’s development, especially in backward rural ­areas and slums, reform of unjust laws, women’s participation in society and administration at all levels, improve State’s mechanism for women’s development, and encourage the setting up of women’s organizations. On Article 4, the report stated that there were no special temporary measures in favour of women.11 Information was given by the report on various seminars in the country to help tackle the issue of prejudices against women, in response to Article 5.12 On the issue of sexual exploitation voiced by Article 6, the report listed a number of laws which were either unjust or simply not well implemented



3.

4. 5. 6.

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to help women in such situation. The report singled out, among others, the Trafficking of Women and Girls Act 1928 and the Prostitution Suppression Act 1960.13 7. With regard to Article 7 concerning access to public office, though the country had entered a reservation to this Article, the initial report readily gave information that there remained some areas of discrimination, such as the prohibition against women becoming sub-district officers (Palad Amphur).14 8. With regard to Article 8’s provision on access to represent the country in international organizations, the report noted that there was no legislation on the point.15 9. A major issue surrounded Article 9 of the cedaw concerning the right to  acquire a nationality. A reservation was entered by Thailand to this Article, with the backdrop that, at the time, the nationality legislation recognized the acquisition of Thai nationality by reason of blood link with the Thai father, but not with the Thai mother. This was further complicated by the presence of an Executive Decree (No.337) of 1972 which prohibited the acquisition of Thai nationality where a Thai married an illegal alien.16 10. With regard to access to education espoused by Article 10 of the cedaw, the report underlined that the right to education was guaranteed for all,  with six years’ compulsory education under the 1978 ­Constitution. While there were more male students than female students at the ­primary and secondary levels, there were more female graduates than male graduates at the tertiary level.17 It also noted that illiteracy was more prevalent among women – 62.2% as compared with 37.8% among men.18 11. Another key area of concern under the cedaw is employment, under Article 11. While not overlooking the fact that the country had entered a reservation to Article 11(1)(b) concerning equal opportunities to employment, what was the country’s response to this issue ? The report suggested that equality was adhered to, in principle. However, this was diluted for a variety of reasons. Even though the national labour force survey ­indicated more men than women in the work force, this was itself opaque, as it may have undervalued women’s work at the domestic level and in the informal work such as agriculture.19 En passant, the reservation entered on this Article was partly influenced by the fact that at the time, the labour law on the subject – Ministry of Interior (moi) Announcement pursuant to Revolutionary Announcement No.103 in 1972,

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prohibited women from being employed in ­dangerous work, such as underground mining or night work. Despite these difficulties, some action was being taken to overcome them, for example through the guidance of the 6th Plan. 12. With regard to the issue of health care under Article 12, the report recognized that in principle, there was no discrimination, but in practice there was, such as the perception that it was the task of women to undertake family planning.20 At the time of the report, the county also did not yet have universal health care. The emphasis of the 6th Plan was to attenuate this situation by developing primary health care, organization building, infrastructural development and the provision of alternative resources. 13. A similar finding was noted in regard to Article 13 of the cedaw concerning access to family benefits.21 14. The question of rural women raised by Article 14 of the cedaw was particularly important for Thailand as the bulk of the population lived in rural areas. Thus the report underlined the importance of rural development, as guided by the 6th Plan. In addition, the country was implementing various basic needs indicators to measure access to development, including care provided for pregnant women and related nutrition.22 15. A major challenge related to Article 15 and 16 to which the country had entered a reservation. This was an area where in law and practice there was discrimination in favour of men, with anomalies in regard to marital and related matters, such as the slant towards men in regard to divorce.23 Phase 1: Dialogue and Recommendations When the time came for the oral dialogue with the cedaw Committee, a woman Minister was sent to New York to represent the country in 1990.24 She noted the presence of a permanent body dealing with women’s concerns in Thailand  – the ncwa, together with various national plans. She underlined the presence of de facto discrimination in the country, while indicating the Government’s intention to withdraw the reservations. Upon consideration of the report, the cedaw Committee made various General Observations proffering comments and recommendations to improve the implementation of cedaw in Thailand, including the following: 1. The cedaw Committee expressed its concern over the reservations.25 2. It requested more information on issues such as the national plans.26 3. It sought clarification of the link between one of the reservations, the presence of national security laws and the question of “prisoners of conscience.”27

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4. 5.

6.

7. 8. 9.

10. 11.

12.

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It requested criteria for selecting members the national machinery on women and budgets.28 In regard to Article 2 on the age of consent in sexual matters, while noting that since the report was written, the country had adopted a law to raise it from 13 to 15 years of age, it cited the issue of sexual violence as follows: “The question was asked whether it was felt that raising the age would help protect women, whether sexual aggression against girls older than 15 was considered to be violence and whether there were policies to deal with it.”29 Concerning Article 3, the Committee requested information on the target of more women in political positions and whether there was contradiction with the reservation entered to Article 7. It requested more information on infant and maternal mortality.30 On Article 5, it requested information on training on human rights.31 In regard to Article 6, it wished for information on reform of the 1960 Act on the Suppression of Prostitution and statistics on prostitution.32 The Committee commented on Article 7 that “there were relatively fewer women candidates elected than male candidates; the reasons for that were requested as well as the basis on which members of the upper house of the Parliament were appointed and whether the Government or political parties intended to establish quotas. The extent to which women in Parliament supported the national machinery was asked as well as whether support was received from male parliamentarians. Concerning the public service, the nature of the work of sub-district officers was asked in terms of why it had been considered in the past that women could not qualify for those posts. The extent to which women’s organizations supported the legal reform effort was requested as well as whether women’s organizations had the same priorities as the Government and if not, the nature of differences.”33 More information was sought on implementation of Article 8.34 On Article 10, the Committee asked about textbooks, then added that “the reservation on the Article was based on access to certain military institutions; it was asked whether the reservation was not inconsistent with Article 35 of the 1978 Constitution and whether it was significant enough to justify a reservation on the Article as a whole. It was further noted that there was a lack of equality in access to vocational education, and information was requested on the views and attitudes of women on the question and on the views and attitudes of teachers.”35 The Committee asked for more information concerning Article 11 and the  relationship with the 5 year plan, implementation of Article 12

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c­ oncerning family planning and the issue of abortion, then information on Article 13 on bank lending and family nexus as social security.36 13. It asked for more information on Article 14 concerning the agricultural labour force and land.37 14. It noted the reservation to Article 15 and then asked about the reservation to Article 16, as well as the issue whether dowry practices existed and also the bigamy problem.38 The Thai delegation’s response was summarized in un records as follows: 1.

As a general reply, the country was committed to equality in the development process.39 2. On the reservations’ question, the Government explained that these were necessary to indicate differences between Thai law and international law.40 3. On Articles 1 and 2, the country admitted that there was still no definition of “discrimination”, with the Constitution not yet guaranteeing rights directly, and also there was a need to balance with national security.41 4. On Articles 3 and 5: statistics were given, such as on infant mortality, while dissemination efforts were noted.42 5. On Article 6: concerning the sensitive prostitution issue, the reply noted difficulties in law enforcement as well as its transborder nature:43 6. On Article 7, it was noted that women were still prohibited from being sub-district officers but that reform was pending.44 7. On Articles 10 and 11, there was a need to overcome stereotypes and broaden non-formal education, while on employment, there were differences in law and practice in regard to equality, and social security was limited to occupation-related disability. The extended family system helped but it too was disintegrating.45 8. On Article 12, family planning tended to place the burden on women, while abortion was illegal subject to some exceptions. The age of consent had been raised to 15 by law reform in 1987.46 9. On Articles 13, 15 and 16, though women had equal contractual status with men, outreach to the private sector was needed. The law did not favour bigamy but was vague. The only penalty was for perjury in the case of double marriage registration.47 10. On the issue of asylum seekers, the policy was that temporary stay was accorded to legitimate cases, with possible resettlement in third countries.48

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In response, the Committee rounded off by expressing concern about the invocation of national security in the implementation process in Thailand.49 Phase 2: Implementation The second phase was when the country submitted its combined 2nd and 3rd report to the cedaw in 1993, with information up to 1992. This was supplemented by later updates. The report underlined key developments including: 1.

2.

3.

4. 5. 6.

7. 8.

In regard to implementation, there was a strengthening of the national mechanism on women’s issues – the Office of the National Commission on Women’s Affairs (oncwa), and its role in helping to prepare Thailand’s National Declaration on Women, Perspective Policies and Planning for the Development of Women (1992–2011) and the 8th national economic and social development plan (1997–2001)50 It was also helping to collect more gender statistics in line with cedaw General Recommendation No.9, and helping to follow up with actions from the Nairobi and Beijing conferences.51 There was decline of poverty between 1986 and 1992, while noting income disparity. Development was guided by adoption of national plans, particularly the 8th Plan, with targets to improve access to services and measures on social development such as reduction of illiteracy.52 On withdrawal of several reservations, the report noted withdrawals in regard to Article 11(1)(b) on employment, Article 15(3) on contract, and on Article 9(2), with withdrawals concerning Article 7 and Article 10 pending.53 In regard to Article 1 on definition, specific law on anti-discrimination and definition of discrimination were still lacking.54 With reference to Article 2 on anti-discrimination measures, an equality clause had been reinserted into the Constitution (Section 24).55 In regard to measures in the political, social, economic and cultural fields voiced under Article 3, initiatives were led by national plans.56 There was also adjustment of the 20 year perspective plan for women (1982–2001). The longer term Plan was now the Perspective Policies and Planning for the Development of Women (1992–2011) geared to more programming.57 With regard to possible temporary measures under Article 4, the report’s response was that these would be unlikely and would be seen as unfair in the current political and social climate.58 On measures against stereotypes under Article 5, it was noted that the ncwa had organized several seminars on the issue and there was more emphasis on family education and the adjustment of male roles.59

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9.

On Article 6 referring to the prostitution issue, steps were apace to pass a new law to protect children (under 18) from prostitution and impose more severe penalties on exploiters. There was also the challenge of attitude, the spread of hiv/aids and the rise of sex tourism.60 The ncwa estimated that there were then 150, 000 to 200,000 sex workers of whom 15–20 per cent were under 18.61 Counter-activities included more education and training, law reform concerning the 1960 anti-prostitution Act and the 1928 Act on the Prevention of Traffic in Women and Girls, and assistance for non Thai women in Thailand and for Thai women in foreign countries.62 10. In regard to Article 7 on political and public life, it was noted that the 1995 elections resulted in more women being elected as mps and the Senate, although a drop in the number of women in the cabinet. In 1993 the law was also changed to enable women to become sub-district officers.63 The first female governor had been appointed and there were more female judges. 11. With regard to Thai women’s representation in international organizations per Article 8, the number was still small.64 12. Per Article 9, in regard to law reform on nationality, the situation had improved as regards the transfer of Thai nationality via the Thai mother who married a foreigner; the acquisition by the child based on blood links was now the same, whether the father or mother was Thai. However, in regard to acquisition of Thai nationality through marriage, there remained the issue of whether the law was the same in regard to a Thai man who married a foreigner and a Thai women who married a foreigner.65 (In reality, in regard to the acquisition of Thai nationality by marriage, there were more conditions to be fulfilled for a Thai woman married to a foreigner than the reverse. The situation was thus not totally equal and this would give rise later to a court case (noted below) in regard to key challenges which remained for adjustment and implementation.) 13. On Article 10 concerning education, there was the target of raising compulsory education from 6 to 9 years, with eventual target of 12. In reality, there was lower attendance by girls.66 14. Per Article 11, on employment issues, in 1990, women constituted 47% of the labour force.67 They tended to suffer from lower pay despite the minimum wage for all. However, on a positive front, paid maternity leave had been extended to 90 days.68 15. In regard to Article 12: Health issues, at the time, there did not yet exist  universal health care for all, although hospitals would offer help to

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16.

17.

18.

19.

20.

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those who could not afford to pay.69 A key issue during the mid 1980s and  1990s was the spread of hiv/aids and the large number of Thais ­affected, with some 67% through heterosexual intercourse. The country was targeting 100% condom access policy. The law was still the same in regard to abortions being illegal, subject to a small number of exceptions.70 On occupational health for employees, the situation had improved with the introduction of the 1990 Social Security Act which laid down a variety of social security measures including “limited sick pay, long term disability payments and funds to help families affected by work related deaths.”71 The report did not respond in detail to Article 13. On Article 14 regarding rural women, given that some 69% of the Thai population were still in rural areas with some 60% in agricultural employment, this was an area for more programmes to help women.72 These included education, training, self help groups and cooperatives, and health care. On Article 15 concerning equality before the law, it was noted that vio­ lence was becoming a national concern under this report. There was, however, no protection for women within marriage against rape or sexual assault. Similarly, there was in Thailand steadily increasing sexual harassment, and this was an issue which had yet to receive significant attention. In the face of statistics revealing that the number of reported rapes in Thailand was steadily increasing over the past 14 years, various measures were being taken including provision of counsellors for victims. However, more training was needed for the police, with increase of women officers.73 On the marriage issue, per Article 16, this remained a challenging area where the reservation was fully operational. There were many discrepancies, including: inequality in regard to claim for compensation for sexual intercourse with one’s betrothed, – the man could claim from another man, while the women could not; bigamy was still not a criminal offence; divorce grounds favoured the man; divorced fathers failed to pay child support.74 Personal rights, including the choice of names, were not yet enjoyed by women. There remained a discrepancy concerning use of the marital name. Women were still required to change their maiden name to that of the male spouse on marriage instead of having a choice concerning name. This would also give rise to a court case discussed below which would be noted in the next cycle of reporting. Women also had to change their prefix/title upon marriage to designate their marital status.75 There was an anomaly in regard to unlawful sexual intercourse which opened the door to impunity by enabling the man to marry the underaged girl.76

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As the report was not considered till 1999, it is important to note key developments between the early 1990s and 1999; these were borne in mind by the cedaw Committee at the time of consideration. They were also captured in the list of issues sent to Thailand before the dialogue with Committee and the various updates and responses provided by the country. Three features were particularly significant. First, there was a coup in the country in 1991, followed by the establishment and demise of the military Government in 1992. There followed elections and a new Constitution in 1997. Second, the 1997 period witnessed an economic crash in the country with several banks and financial institutions in tatters and needing key reforms. This was part of the Asian ­financial crisis and raised key issues concerning economic and social impact on the population in the face of massive lay-offs, reduction of State expenditure on basic services and restructuring of the economy. Third, the mid 1990s witnessed a key international conference which led to a global policy and programme to elevate the status of women – the Beijing Platform for Action of the Fourth World Conference on Women 1995 which also had key implications for the Thailand, including action needed against violence affecting women. Phase 2: Dialogue and Recommendations The dialogue took place with the cedaw Committee in 1999. The Committee recognized that 5 out of 7 reservations had been withdrawn, but a proposed anti-discrimination law had also been rejected in the country.77 The presence of a national mechanism was of interest to the Committee, while the impact of the Beijing Platform for Action and its relationship with the country’s national development plans and related women’s plans was noted.78 There remained concerns in regard to gender stereotypes. New legislation against sexual exploi­ tation was coming into existence at the time of the dialogue, together with other new laws such as the labour protection Act of 1998 which would provide for equality in labour protection and include a provision against sexual harassment. However, women’s participation in political and public life remained low.79 The Committee’s recommendations included the following: 1.

2.

It welcomed various developments since the first Report, including the presence of the ncwa, development of new laws and policies, the passage of a new Constitution in 1997 with an equality clause, and new laws against human trafficking, on labour protection, nationality and child labour. It welcomed withdrawal of the reservations.80 It recognized the difficulties facing the country, in particular the financial crisis.81

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3.

It expressed concern on the lack of a law on gender equality and the presence of the reservation on Article 16 (family life) despite the withdrawal of many others.82 4. It was concerned about the lack of direct applicability of the Convention and lax law enforcement. It recommended specific legislation on the issue.83 5. It called for revision of textbooks to overcome gender stereotypes.84 6. It noted the underrepresentation of women in political and administrative positions, including judicial positions, and called for affirmative action in this regard.85 7. While welcoming the raising of the minimum age for work to 15 years from the previous 13, and 9 years’ education, there remained the issue of drop-outs.86 8. It expressed concern over the situation of migrant women and hill tribes, while noting the trafficking issue.87 9. It called for more action on the issue of violence: Recognising that sexual harassment, rape, domestic violence and marital rape, whether in the family, the community or the workplace, constitute violence of women’s right to personal security and bodily integrity, the Committee urges the Government of Thailand to amend the penal code in the light of the (un) Declaration on Violence against women and the Committee’s general recommendation No.19.88 10. It expressed concern on the stereotypes in textbooks and media and recommended review.89 11. It called for more programmes to help rural women, including on access to decision making, health, education and social services.90 12. On marital matters: 247. The Committee is concerned that the current Name Law and other laws operate so as to restrict women’s access to credit and land ownership when they marry foreigners. 248. The Committee strongly recommends the timely introduction of the proposed amended Names Act and the Nationality Law.91 Phase 3: Implementation The fourth and fifth combined report covered the situation till 2004.92 Thailand sent additional information in 2005 and the dialogue process with the cedaw Committee took place in 2006. The period since the combined second and third reports had witnessed ­several key developments. First, the enforcement of the 1997 Constitution. This also led to the establishment of an array of new institutions such as the

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Constitutional Court and the National Human Rights Commission. More specific mechanisms on women’s matters were also set up as discussed below. Second, there emerged strong social policies especially universal health care based on 30 baht contribution per person in 2001 together with a range of other populist programmes. The country also became a party to the cedaw Protocol in 2000. However, it should be noted that after the issuance of the cedaw recommendations in this third phase, the country underwent an unexpected turn of events: a coup took place in 2006, ejecting the civilian government. There then emerged the 2007 Constitution which would need to be covered by the country’s next cycle of reporting. Like earlier reports from the country, the 2004 report responded to each of the articles of the cedaw and these were later updated in the period towards dialogue with the Committee, with the country recovering from an economic crisis in 1997 and with innovations such as universal health care for Thais. Salient developments included the following: 1. 2. 3.

4.

5.

6.

In regard to general implementation, the country was adjusting from the economic crisis of 1997, while there were key innovations in response such as the introduction of universal health care for the Thai population.93 The reservations to Articles 16 and 29 remained. Initiatives were apace to promote equality in family matters.94 There were key changes in regard to the national mechanism supervising women’s issues, with the creation of a ministry to take over the work of the Office of ncwa.95 Gender equality officers and focal points were also introduced for each ministry as below. On Article 1, the report admitted that the country did not yet have a clear definition of discrimination, even though there was an effort to introduce a law to counter discrimination against women. The 1997 Constitution had a provision on non-discrimination which covered the issue of sexual discrimination.96 With regard to Article 2 on policies against discrimination, in addition to the Constitution, the following mechanism was introduced: national plan and the setting up of gender focal points in government agencies.97 There would also be more measures to help families, such as the establishment of family development centres in local communities, child care centres, and improved laws to protect women, children, the elderly and those with disabilities from abuse.98 Measures under Article 3 in the political, social and other fields were shaped in part by national development plans. As part of the 9th nesdb (2002–2006), the ncwa had also drafted the Women’s Development Plan

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with an emphasis on self sufficient economy and sustainable development.99 These would go hand in hand with the new institutions set up by the 1997 Constitution, including the National Human Rights Commission and the Ombudsman. 7. On special measures under Article 4, it was noted that the Government had established village and urban community funds of 1 million baht per community.100 8. Action against stereotypes under Article 5 placed more emphasis on decentralization of the educational system. A major issue in this regard was domestic violence against women and children, and the attitude that this was a private, family matter, with a paucity of reports to the authorities. Some of the countermeasures included child friendly procedures in the case of criminal investigation, enactment of a law on domestic violence, shelters for victims, and data gathering.101 9. On the trafficking issue under Article 6, the report admitted that this was linked with the spread of crime and had become more transnational. Various laws, such as the new 1997 law against trafficking in women and children, were now available against the phenomenon.102 Various policies reinforced the laws.103 Most important was access to education and occupations.104 There was cooperation in its various forms with the rise of a range of mous inside the country between different sectors and ­bilaterally to promote action against trafficking and to aid the victims. The key concern was lax law/policy enforcement.105 10. With regard to access to public office under Article 7, although this was improving with more access by women to political and administrative positions, the proportion of women in key positions was still much lower than that of men. Some political parties in the 2001 elections were integrating women’s concerns into their policies.106 The report also gave information on access to Parliament.107 11. On the issue of international representation per Article 8, there was still low participation.108 12. With regard to equality in regard to access to nationality per Article 9, some improvements had taken place, such as law reform to enable those who marry foreigners to retain their land.109 13. The National Education Act 1999 set the tone on the issue of education per Article 10 by raising basic education to at least 12 years free of charge. However, the 1997 economic crisis had taken its toll, with more illiteracy outside urban areas. Despite this, girls and boys enjoyed almost equal access to all levels of formal education with more girls than boys at the tertiary level. Support for girls’ access included the educational loan fund and specific

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14.

15.

16.

17.

18. 19.

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scholarships for girls.110 There remained various stereotypes which were discriminatory such as the traditional roles leading to women’s education in domestic science rather than in vocational education. This was in the face of high enrollment of women in non-formal education. Some institutions, such as the police and military academy, still did not admit women.111 On the issue of employment per Article 11, more men were employed.112 Yet, the numbers only gave part of the picture and did not reflect women in unpaid family work/ housework, nor the informal economy such as homeworkers. While the law was protective of women at work – the 1998 Labour Protection Act – and covered both local and migrant workers, there remained the issue of implementation, such as unequal wages despite the basic minimum wage for all. Another innovative law was the Social Insurance/Security Act 1990.113 The law on pregnancy had also improved with 90 days paid leave and prohibition of work between 22 pm and 6 am in relation to demanding work. On the health issue per Article 12, the provision of universal health care for Thais upon payment of 30 baht (“universal health care scheme”) was a breakthrough, but there remained challenges such aids, with the number of women affected cases increasing.114 On a positive front, the anti-aids drug azt was also being given to pregnant mothers free of charge. The law on abortions was also being revised. Occupational safety and health remained a concern, especially for women in industry and agriculture, with work related injuries rising. Mental health problems were also increasing. With regard to Article 13 on economic and social life, the 30 baht universal health care scheme was pertinent to family benefits.115 The government had also launched two community credit programmes: the village and urban community fund and the people’s bank. On the issue of women in rural areas per Article 14, some 57 per cent of the population remained in the rural sector.116 Many women were unpaid family workers. The 30 baht health care scheme was of importance to them. Rural urban differences in education were also declining due to more schools, together with more self-reliance activities.117 On the issue of equality before the law per Article 15, equality was reflected in the law concerning commercial transactions and access to the courts.118 Finally, the reservation still applied on family rights per Article 16, cloaking a number of disparities between men and women already noted in the country’s earlier reports and discussion with the cedaw Committee such as on betrothal, marriage, names/marital designation and divorce. A law to change the position in regard to names had been rejected by Parliament in 1999.119

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Phase 3: Dialogue and Recommendations Various key developments took place after the report preparation and these were borne in mind in the additional information given to the Committee before and during the dialogue with the Committee in 2006. First, there were various law reforms such as amendment to the Names Act so as to enable women to choose to retain their maiden name. There were also draft laws on domestic violence and human trafficking. Second, Thailand became a party to the Optional Protocol to cedaw in 2000 opening the door to individuals communications with the Committee where local remedies had been exhausted. Impetus for gender equality was also provided by the adoption of the Millennium Development Goals globally setting targets to be achieved by 2015. Third, the situation in southern Thailand started to become violent after the turn of the millennium bringing into operation a variety of emergency laws which were and are still felt today in terms of constraints on rights and the precariousness of livelihood in the midst of daily violence. In 2006, the cedaw Committee made recommendations as follows: 1.

2.

3. 4. 5.

It welcomed the advent of various laws and policies, such as the national policy against trafficking and the amendment to the Names Act. More­ over, it greeted the presence of gender focal points and equality officers, together with ombudsman, the Human Rights Commission and village and urban fund committees.120 It raised the need for full implementation and questioned the persistence of the reservation to Article 16 as follows: “11. The Committee remains concerned that the State party continues to retain its reservation to Article 16 of the Convention. The Committee draws the attention of the State party to the fact that reservations to Article 16 are contrary to the object and purpose of the Convention. 12. The Committee urges the State party to expedite its efforts towards the withdrawal of its reservation to Article 16 of the Convention within a concrete time frame.”121 It called for review of legislation to ensure consistency with cedaw and to make its provisions fully binding locally.122 It again raised the issue of lack of definition of discrimination and needed action.123 It raised the issue of the new machinery on women’s rights in the country and called for an in depth assessment of the situation.124 Discrepancies in family law were high on the agenda as follows: 19. The Committee expresses concern that discriminatory provisions still exist in Family Law, especially in relation to betrothal, marriage and

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divorce. In this regard, the Committee notes with concern that a betrothed man, unlike a woman, may claim compensation from any man who has either sexual intercourse or who has raped or attempted to rape his betrothed. With regard to marriage, the Committee notes with concern that a man who has sexual relations with a girl over the age of 13 but under the age of 15, with her consent or that of her parents, could marry her without being prosecuted. With regard to divorce, the Committee is concerned that whereas adultery committed by the wife constitutes grounds for divorce, a married man may have sexual intercourse with other women, but his legal wife can file a divorce only if it can be proven that her husband supports and honours another woman as his wife. The Committee is also concerned that the 310-day waiting period for a woman to remarry puts an unnecessary restriction on her rights. 20. The Committee urges the State party to accelerate its reform of the Family Law in order to eliminate all discriminatory provisions, particularly in relation to betrothal, marriage and divorce, so that women and men can enjoy the same legal rights and obligations.125 6. The issue of temporary measures or “affirmative action” to help women (providing more benefits than those guaranteed to men) still awaited a more concrete response.126 7. The Committee was wary of some of the provisions of the draft domestic violence law, especially the emphasis on reconciliation and family unity, and the lack of provision against rape in marriage per Section 276 of the Penal Code.127 8. The Committee expressed its concern over the continued stereotyping and called for awareness raising programmes to support equality.128 9. On the trafficking issue, the Committee voiced the need for new antitrafficking law coupled with other measures.129 10. In expressing concern over the low proportion of women’s participation in decision-making positions, it recommended quotas to accelerate the process.130 11. The discrepancy concerning the nationality issue, particularly the disadvantaged position of Thai women marrying foreigners, was underlined, particularly the fact that more conditions were imposed (than when Thai men married foreigners).131 Thus it called for reform of the nationality law. 12. On the plight of rural women, the Committee called for full access to nutri­tion, sanitation, health related services, education and income generation.132 13. Given the rise of violence in the South, the Committee took into account the situation of women, including lack of access to education, social

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14. 15. 16. 17. 18.

39

s­ ecurity, health care and early marriage, calling for more opportunities for women and girls.133 On the hill tribe groups, it called for access to citizenship, including addressing corruption by public officials, and on refugees, the obtaining of legal status.134 It was concerned about the presence of unsafe abortions and the burden put on women in accessing and using contraceptives, and issued this call for more access to contraceptives and health care services.135 On the high rates of hiv/aids among women, particularly in regard to those among those engaged in prostitution, the Committee advised more prevention measures as well as more gender sensitive programmes.136 On the data issue, it called for adequate sex disaggregated data to enable transparency in regard to cedaw implementation.137 It exhorted the country to use all the international instruments on the issue, as well as to adhere to all the human rights treaties and to submit the next report – combined 6th and 7th report in 2010, as well as dissemi­nate broadly the Committee’s recommendations and respond to its concerns.138

Protocol As a postscript, Thailand became a party to the cedaw Protocol in 2000. This opens the door to individual complaints to the cedaw Committee in the case of exhaustion of local remedies. To date, no case has even been taken to the cedaw Committee. It may be worth speculating which of the situations cited above might be worth exploring, even hypothetically, as fitting the criteria under the Protocol. Perhaps the issue of the acquisition of Thai nationality by the foreign spouse of a Thai woman could be a case in point, as the criteria are different from those linked with the situation of the foreign spouse of a Thai man (the latter case being subjected to fewer conditions).

Key Challenges

Many developments have taken place since 2006 when the most recent dialogue with the Committee took place, followed by its recommendations. Most evidently, a coup took place in 2006 which led to a new Constitution in 2007, and another in 2014 which led to an interim Constitution in the same year. Various recommendations from the Committee have been dealt progressively while others are awaited, at times impeded by lack of political will or low

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priority. The latest draft report (combined 6th and 7th) was being finalized in 2014.139 The progression towards the situation of today in 2015 can be encapsulated as follows: Definition/Law Reform On a welcome note, the Constitutions since 1997 have reiterated the principle of non-discrimination which also includes non-discrimination in regard to sex. In the middle of 2015, the gender discrimination Act was passed by the legislative assembly set up after the coup.140 The new law prohibits gender discrimination which is also understood to cover gender expression – a term broad enough to encompass the rights of Lesbians, Gays, Bisexuals, Tran­sgendered persons and Intersex persons (lgbti). However, there are extensive exceptions in regard to national security and religion. The law was passed without much consultation with civil society and it has yet to be tested. In addition to prohibition in regard to gender discrimination, it sets up various committees, most significantly to accept complaints in regard to discrimination, with the possibility of sanctions. Cases can also be taken to the courts. Since the 1990s, there have been some positive law reform such as in regard to access to political and administrative office, protection against violence, ­anti-prostitution and trafficking, and labour protection. Major law reforms have also taken place in family and marital matters in pursuit of gender ­equality. These are complemented by consecutive national policies and plans which help to target programmes to assist women and which have influence on the budgets allocated. The crux remains the weak or lax implementation of the law on some fronts, especially in the face of criminals who profiteer from women and those who commit acts of violence against them, as well as in areas where the women are non-Thai. In terms of mindset, it is not always easy to convey the understanding that women’s rights mean the rights of all women – not simply Thais but also non-Thais such as migrant workers, stateless persons and refugees Implementation of Law and Policy/Court Cases Implementation has been constructive on several fronts, such as in the area of maternal survival and development. However, participation of women at the top levels of public office is still limited, and the protection of women from abuse, exploitation and violence remains a key concern. A classic situation is the issue of human trafficking where it is often difficult to find the culprits especially if there might be corruption nearby.

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At times, the courts have had a positive hand in promoting change. In the 2003 case concerning the Names Act (year: B.E. 2505) which had compelled women to change their maiden name to the husband’s name on marriage, the Constitutional Court intervened well to annul the law on the basis that it violated Section 30 of the Constitution (on non-discrimination). There has been legislative change to follow up the judgement and women are now able to choose their name on marriage.141 In a case in 2012, the judiciary acted again to uphold the rights of women in a case concerning the filing of taxation forms and payment of tax in the case of married couples. According to the law which was cited before the Court, a woman in a married situation had to file her tax with the husband’s tax form and also become liable for the non-payment by the husband of his returns. The Court judged that women have the right to file their own, separate tax forms even in a married situation.142 By contrast, however, in 2003 there was another case which appeared before the Court on the question of the nationality law, namely the situation of a Thai woman who married a foreigner and the acquisition of Thai nationality by the latter. The Court did not find discrimination in the details of the regulations which differed in regard to acquisition of Thai nationality by a foreign spouse; they imposed more conditions where it was the Thai woman, rather than the man, who married a foreigner.143 The conditions included at least five years’ residency and the proof that the man had reached the age of majority according to the country of his nationality and Thai law. Reservations After the most recent report to the cedaw Committee, the country withdrew the reservation to Article 16 on family law (another five reservations had been withdrawn a while back), as various reforms had raised the standards to comply with the cedaw. These included law reform ensuring that the grounds for divorce and betrothal were the same for men and women, as well as to extend rape to cover marital matters in the case of coercion. Thus, the withdrawal of six out of seven reservations has been a success, although needing time for this to happen.144 The remaining reservation (Article 29(1)) concerns Thailand’s unwillingness to use the International Court of Justice and this is the case in all treaties to which Thailand is a party. This is due to the fact that it has withdrawn its consent to the court’s jurisdiction and also due to a famous case – the Temple case – where the court found that the temple which was the bone of contention between Thailand and Cambodia was in Cambodian territory rather than Thai territory, thus belonging to Cambodia.145

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Mechanisms/Personnel At one level, the national mechanism on women’s issues is now more sustainable. It has shifted from the initial ncwa to a Ministry with gender equality officers and focal points. Personnel adjustments have also taken place, such as under the new amendment to the Criminal Procedure Code which stipulated that women police officers would interview rape victims.146 The quality of the gender equality officers/focal points deserves more analysis and follow up. Since 1997, mechanisms and personnel on human rights and women’s issues, including the National Human Rights Commission and Ombudsman, have grown. The Courts now have more women judges and as indicated above, some court decisions have been instrumental in elevating equality among men and women. Non governmental organizations (ngos) and civil society are also active and have a broad outreach in the country. Access to Political/Administrative Office While women’ s access has improved on several fronts, e.g. access to the judiciary and local positions, it is still a steep climb for women to the highest political offices, even though recently the country had a woman Prime Minister. There are still too few women cabinet ministers and women at the topmost ladder of power. This is interrelated with the issue of the need for temporary measures voiced by the cedaw Committee above, which have not been adopted, to date. Nationality There have been some improvements throughout the years on the acquisition of Thai nationality. As noted above, the acquisition of Thai nationality by the child is now the same whether the parent is a Thai father, or mother, whether or not the parent is married. There remains the discrepancy, however, on the question of acquisition of nationality by the foreign spouse of a Thai women, as various conditions are imposed, as seen in the case above. On another front, there has been an effort to grant Thai nationality to persons born in Thailand who have been in the country for a long period of time. The Nationality Act (2008) accords this in regard to persons born in Thailand (principally before 1992) where they would otherwise be stateless.147 It also restores Thai nationality to persons whose Thai nationality had been revoked by Revolutionary Announcement No. 337 due to their classification as illegal immigrants or aliens.148 More recently, another nationality law conferred Thai nationality on persons of Thai origin who had been displaced to other countries, such as ­ethnic Thais in Myanmar.149

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Protection from Violence and Violations Protection issues concerning women have become a higher priority in policy and practice. Yet, the situations of violence and violations are extensive. While there is now a Domestic Violence Act, the act opens the door to conciliation rather than punishment of the abuser within the family setting. Situations of abuse also give rise to compoundable offences which imply that the abuser and the abused can agree to drop the case and not proceed with the prosecution. This has been criticized by various un monitoring committees under the other treaties analysed in the subsequent chapters. Meanwhile, although a flurry of new laws and policies have risen to protection women from exploitation and trafficking, the situation remains serious and have given rise to consequences in other international fora. On a related front, a broad survey of the situation was undertaken in 2013 in regard to children, and it found that many situations of violence within the family were due to alcohol abuse and were committed by men.150 Non-Thais: Migrant Workers, Asylum-Seekers Massive influx of migrant workers into the country has accompanied the country’s economic growth since the 1990s. There are now Memoranda of Understanding (mous) to manage the flows and those who are registered and have verified their nationality have access to employment, social security and protection available under Thai law.151 However, clandestine cases are often subject to exploitation by the vested interests preying on their plight. In 2013, there was an attempt to offer health insurance to all migrant workers irrespective of whether they were clandestine or not – the State was offering health insurance cards which anyone could buy. In times of downturn, however, here as elsewhere, migrant workers are often made scapegoats and are the first to be squeezed out of their jobs. With regard to asylum-seekers, the country has been hospitable to many groups, despite not being a party to the international refugee Convention. ­However, in recent years, the Rohingya from Myanmar – a Muslim ethnic minority – particularly seeking refuge by sea, have at times been pressed to move on without being allowed to enter the country.152 Where they manage to enter the country, upon entry into Thailand, men and women are separated and housed in different places; many have disappeared from their detention centres or shelters. The situation has become more complicated due to reports of an admixture of trafficking, smuggling and exploitation by some of those who are in uniform.

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Data and Monitoring While the country has generated more data and undertaken monitoring in recent years on women’s rights, the data base still needs to be more systematic and sustained. Difficult areas for information collection include the protection issues affecting women and clandestine quarters such as the prostitution sector and human trafficking. The data and related monitoring can also be catalytic in highlighting loopholes to be addressed, particularly in relation to implementation of the Convention. 1

2

3 4 5 6

7

8 9 10 11 12 13

The Convention has 30 articles in total. The country is also a party to the cedaw Protocol and accepted the inquiry procedure under the cedaw Protocol (Articles 8–9). It entered 7 reservations to the cedaw on the following Articles: 7, 10, 9(2), 11(1)(b), 15(3), 16, and 29(1). Currently, all have been withdrawn, except re Article 29(1). Why did Thailand accede to this treaty before the others ? The climate for doing so was appropriate: the country was already participating in global forums on women’s issues, especially the commitments under the various women’s development decades and related conferences. Accession also indicated that even though the country was not yet fully democratic at the time of accession, women’s issues could be addressed quite openly in the country. The special concerns of various groups such as women and children could be raised internationally/nationally, to a large extent, without being inhibited by political constraints. Initial Report of State Parties: Thailand. un Doc. CEDAW/C/5/Add.51 (June 1987), p. 4. See also Vitit Muntarbhorn, Wimolsiri Jamnarnwej and Tanawadee Boonlue, Status of Women: Thailand (Bangkok: unesco, 1990). Ibid. Ibid., p. 5. General Assembly Official Records, 45th Session, Supplement No.38, A/45/38(New York: un, 1990), paras. 214–250. Thailand’s Report: un Doc. CEDAW/C/THA/2-3 (April 1993); Comments: General Assembly Official Records, 54th Session, Report of cedaw 20th Session and 21st Session, A/54/38 (Part i) (New York: un, 1999); A/54/38/Rev.1 (June 1999). Thailand Report’s: un Doc. CEDAW/C/THA/4-5 (June 2004); cedaw Comments: CEDAW/C/THA/CO/5 (February 2006). List of issues: CEDAW/C/THA/Q/4-5 (July 2005); Thailand’s responses: CEDAW/C/THA/Q/4-5/Add.1 (December 2005). Supra note 2, pp. 5–6. Ibid., p. 7. Ibid., pp. 8–13. Ibid., p. 13. Ibid., pp. 14–15. Ibid., note these observations: The first statute is letter morte. However, there have been recent calls for its reform. Suffice it to note here that the statute is antiquated and too limited in scope. Basically, it prescribes against those who bring in or take out women and girls from the country. Light

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15 16 17

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penalties may be imposed in this event, i.e. maximum of seven years’ imprisonment and/ or one thousand baht fine. According to the second statute, prostitution is considered to be a crime and every party involved in the trade is criminally liable, except the customer. Prostitution is defined in legal terms as an act of “promiscuously rendering ­sexual service for remuneration.” It also encompasses those who profiteer from the trade, such as pimps and brothel owners. However, penalties for violations are light, i.e. imprisonment of up to six months, a fine of up to 2,000 baht or both…. The above laws are faced with serious application problems. Firstly, there is selective application of these laws – offences tend to be prosecuted under the Prostitution Suppression Act 1960 rather than under other laws. This implies that penalties are lighter. Secondly, frequently it is the so-called law enforcers and concomitant vested interests who profiteer from the trade. Thirdly, when there are arrests, they tend to be of the girls in the trade rather than the procurers. pp. 16–17. Ibid.: In general, it can be said that until recently there was little participation by women in political and administrative positions at the local level because they were prohibited by law from doing so. The Local Administration Act of 1914 entitled only men to this position of village chief (Pou Yai Ban), a position holding local reins of power and vested with opportunities for higher positions such as sub-district chief (Kamnan). The situation has been rectified by the Local Administration Act (no.6) of 1982 which enables women to be elected to such positions. However, this aspect of law reform does not touch “public offices,” in particular the position of sub-district officer which is part of the governmental administrative mechanism. At the highest political level of Parliament, when the first elections were held in 1933 after promulgation of the first Constitution in 1932, there were no women Members of Parliament. It was only in 1949 that the first woman member of Parliament was elected. Latest figures (1986) show that there are only 12 women Members of Parliament as opposed to 335 male Members of Parliament, while there are no women cabinet Ministers at present. In the upper House of parliament which is unelected, out of 206 senators there are 255 men and 5 women… p. 18. Ibid., p. 20. Ibid., pp. 20–21. Ibid. In practice, however, there were obstacles as follows: a. There are still discriminatory attitudes on education and child nurturing whereby men are accorded a superior image. b. Textbooks used in syllabi still emphasise a difference of roles between girls and boys, the former being projected as the weaker sex. c. Vocational training conducted by the governmental and non-governmental sectors in many instances emphasise domestic roles for women, e.g. home economics, rather than skills improvement, e.g. agricultural technology. d. The mass media have sometimes encouraged the traditional, passive role of women in its projection of women as a sexual object in beauty contests. e. Although laws guarantee women’s access to education, there are fewer opportunities for women in the educational field.

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20 21 22 23

chapter 2 f. Women in the industrial sector tend to see the importance of education more readily than women in the agricultural sector. p. 25. Ibid., pp. 25–26. Ibid.: Further impediments in regard to different sectors where women work were identified as follows: Women in agriculture: (a) Men have more opportunities than women to use machinery. (b) Men tend to have permanent jobs while employment of women is piecemeal by nature. (c) Women work more hours than me due to the combined workload of agricultural and household work. (d) Women have insufficient income. (e) Women’ s income is inconsistent. (f) Women have fewer opportunities to take up employment, especially after the ricefarming season. (g) Women have fewer opportunities for training and participation. Women in industry: (a) Women suffer from a low level of education. (b) Women are subject to lower wages and discriminatory practices concerning wages. Discrimination may affect, in particular, pregnant women and their social security. (c) Fewer opportunities for promotion are available to women than to men. (d) Women have health problems working in factories. (e) For women, there is often too brisk a transition from agriculture to the industrial sector with no adequate preparation in knowledge and skills appropriate to the employment situation. (f) Women are affected by the lack of job security. (g) There is weak trade unionism and organization on the part of women. Women in services: (a) There is widespread prostitution. (b) There are attendant health problems and the danger of diseases and aids. (c) Women in this category often suffer from lack of education. (d) Such women are also hampered by lack of alternative employment opportunities. Those who profiteer from these women have not been effectively dealt with by the law. p. 29. Ibid., pp. 30–31. Ibid., p. 31. Ibid., p. 34. Ibid.: a. There is still inequality concerning engagement matters. By Sections 1445 and 1446 of the Civil and Commercial Code, a man is allowed to claim ­compensation from any man who has had sexual intercourse with a women betrothed to him. Yet, conversely, there is no provision for a man to claim compensation from a person who had had sexual intercourse with her fiancé. b. There is still inequality concerning grounds for divorce. Under Section 1516 of the Civil and Commercial Code, a man may claim divorce on the ground of his wife’s adultery.

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The reverse is not necessarily so. For a woman to claim divorce, it does not suffice to claim the husband’s adultery, She must also prove that “the husband has given maintenance to or honoured such other women as his wife.” c. Although bigamy is no longer recognised by law, bigamy as such is not a criminal offence. Registration of several marriages by the same man sometimes takes place with impunity. The only offence for which the man may be prosecuted in this respect is perjury to the marriage registration officer, but this is rare in practice. As bigamy tends to be more commonplace among men, the disadvantages for women are self-explanatory. d. Where a divorce has taken place, the burden is usually heavier upon the wife in relation to maintenance. She has little guarantee for payment of maintenance by the husband. If the husband is a civil servant, she has no means of confiscating his salary as Section 286 of the Civil Procedure Code prohibits such confiscation. e. It is still law that a woman who gets married must change her name to that of her husband. This is prescribed by the Names Act 1982. It must be wondered whether this restricts freedom of choice which is part and parcel of non-discrimination. pp. 36–37. Supra note 5. Ibid., para. 221. Ibid., para. 222. Ibid., para. 222. Ibid., para. 223. Ibid., para. 224. Ibid., para. 225. Ibid., para. 226. Ibid., para. 227. Ibid., para. 228. Ibid., para. 229. Ibid., para. 230. Ibid., paras. 231–232. Ibid., para. 234. Ibid., paras. 235–236. Ibid.: …. traditional attitudes continued to impede elimination of de facto discrimination, much of which was a legacy of the past when equal opportunities did not exist, for example, in education. The Government, however, was committed to equality in both formal and non-formal education. She (The Minister) stated that the National Commission on Women’s Affairs consisted of representatives of key government departments, representatives of two umbrella non-governmental organizations and individual experts drawn from both the governmental and non-governmental sectors. The Commission now gave priority to preparation of the next development plan and linking it with the 20 year long term women’s development plan. Concerning the parliament, it was noted that whereas the lower house was elected, the upper house was appointed largely from high-ranking civil servants or the military, in which there were fewer women. For the lower house, a traditional attitude that women should not participate in politics had affected the number of women (10 of the 357 members), although all parties now welcome female candidates. The women’s plan contained targets for more women in legislative bodies but no quotas

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had been set. The women parliamentarians came from four parties and were enthusiastic about supporting women’s development. Finally, the establishment of a national family day was considered a positive step. para. 237. 40 Ibid.: The Government had taken a cautious approach to the Convention and had entered reservations wherever the Convention had seemed to differ from domestic law or practice. It was necessary to convince people about the necessity to adjust law to the Convention and it was hoped that the views of the Committee would help to do so. It was noted that the Convention was one of the few human rights instruments to which Thailand had acceded. Each reservation had its basis: Article 7 because of certain reserved occupations; Article 9 because in Thai law and practice nationality was passed on through the father; Article 11, paragraph 1(b), because of the law prohibiting night work; Article 15, paragraph 3, because the law had been ambiguous; Article 16 because the law did not meet the requirement of the Convention; and Article 29, paragraph 1, because of a sovereign State’s right to decide who adjudicated disputes. However, it was likely that the reservations on Articles 11 and 15 would be withdrawn in the light of domestic legislative changes. para. 238. 41 Ibid.: In Thai practice, unlike in other countries, the Constitution did not confer rights directly, as they had to be seen in the light of an implementing law. The concept of national security was part of all rights and there was a question of how best to achieve a balance between national security and international human rights standards, a point which the Committee might wish to take up more generally. para. 240. 42 Ibid., paras. 241–242. 43 Ibid.: Prostitution was illegal and in the informal sector and accordingly there were no official statistics. It was related to poverty and therefore combating it required dealing with the root causes of rural-urban and international migration. It was also necessary to distinguish between forced and voluntary prostitution and to have measures appropriate to each. Laws were difficult to enforce, did not affect the consumer and the Government was more favourable to a social approach emphasizing rehabilitation measures. With regard to the connection between prostitution and tourism, government policy did not support the connection, but there was a need to convince the private sector. It was also noted that there was a conception of the problem on the part of some countries and that had led to the unfair treatment of Thai women seeking visas or crossing borders and that called for a more balanced approach by other countries. para. 243. 44 Ibid., para. 244. 45 Ibid., paras. 245–246. 46 Ibid., para. 247. 47 Ibid., paras. 248–249. 48 Ibid., para. 250. 49 Ibid., para. 251. 50 Supra note 6, para. 44. 51 Ibid., Part 1, para. 50. 52 Ibid., Part 1, para. 13. 53 Ibid.:

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56

57

58 59

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In 1990 the Cabinet approved the withdrawal of Thailand’s reservation to  Article 11(1) (b) regarding employment opportunities, following its decision to order all government agencies to review their discriminatory regulations to allow female civil servants to hold any position except those related to national security. This removed all formal barriers to the advancement of women in the civil service. At the same time, the Cabinet also approved the withdrawal of the reservation to Article 15(3) regarding women’s legal capacity with respect to contracts and other matters. Two year later, a further reservation, with regard to Article 9(2), was withdrawn. Processes within Thailand to remove two of the remaining reservations on Article 7 (Equal opportunities for access to all Government jobs) and Article 10 (Equal educational opportunities) were completed in 1995. This left only Article 16 (Equality in family life and marriage) and Article 29 (settling of disputes by the International Court of Justice) subject to reservations. Part 1, para. 33. Ibid., Part 2, para. 1. Ibid., 1976 Constitution: All persons shall enjoy rights and liberties subject to the provisions of the constitution. Men and women shall enjoy equal rights. The restriction on such rights and liberties in violation of the spirit of the provisions of the Constitution shall not be imposed. Part 2, para. 2. Ibid., 8. … This report covers the period of the Sixth (1987–1991), Seventh (1992–1996) and planning for the 8th National Economic and Social Development Plans (1997–2001). From the perspective of women’s human rights, the most notable element of the Sixth Plan was its focus on supporting family structures… 9. Women’s economic and social development and the elimination of discrimination against them were included specifically for the first time in the Seventh Plan. It also stressed the need for the promotion of gender awareness, of a sense of self worth and of the role and participation of women in all facets and stages of the development process. 10. The 8th Plan, which officially comes into effect on October 1, 1996, aims for a slightly lowered annual growth rate of 8 per cent, with stress on human development and social improvement rather than simply on increase in the gdp. It was formulated after nationwide grassroots consultations. 11. The Plan aims to ensure compulsory education is extended from six to nine years nationwide, with the eventual target of 12 years’ education for all. In addressing the issue of wage inequalities, it states agricultural workers’ average wages should not fall below 1/3 of that of workers in the non-agricultural sector. Part2, paras. 8–11. Ibid. 1. The Development of women’s potential and quality of life. 2. The promotion of women’s legal equality, safety and welfare. 3. Women’s participation in societal development. 4. The improvement of the position and the solutions in the problems of the so-called special groups of women (commercial sex workers.) 5. improvements of the mechanisms for the advancement of women. 6. Advocacy and the dissemination of information on women and 7. Research and data collection on women. Part 2, para. 16. Ibid., Part 2, para. 44. Ibid., p. 25.

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Ibid.: 69. Firstly, attitudes towards what is considered normal or acceptable male behaviour have encouraged men to visit commercial sex workers. There is no word in the Thai language for a male virgin and a young man who admits to being such is highly likely to be ridiculed by his peers. It is considered normal in many social groups for a man’s first sexual contact to be with a prostitute, usually accompanied by friends. Visiting commercial sex workers continues to be considered part of group leisure behaviour. …. 71. Attitudes condoning prostitution are not confined to men. There is a perception among both women and men that prostitution protects “good” women against rape, while many wives report preferring their husband visit commercial sex workers rather than take a minor wife which is perceived to be a much greater threat to family stability… 73. The second group of social attitudes which contribute to the problems of trafficking and exploitation of prostitution are those which may push women to become commercial sex workers. These relate to daughters’ duties to their parents and attitudes toward female virginity. In The Thai social structure, both sons and daughters have a duty to repay their parents for the effort of raising them. This is expressed in terms of “paying back” of the breast milk. Men can in part fulfill this duty by entering the monkhood for a period to make religious merit for their parents, but women cannot do this due to the lack of an order of female monks within the Thai Buddhist tradition…. 74. A further problem arises from the very high value still placed upon a woman’s virginity. This may leave a girl or woman who has been abused within her family, involved in an illicit relationship or who has been raped with very low self esteem and feeling her future fate is now important, making her an easy victim for traffickers… 77. Promotion and growth of international tourism has also played a part in encouraging the establishment of entertainment places for tourists where sex services are available. The origins of this sector of the commercial sex industry in Thailand developed during the Vietnam War. From 1964 to 1976, 50.000 foreign s­ oldiers were based in Thailand while about 70,000 came annually for “rest and recreation.” After the war ended the commercial sex workers and the businesses in which they worked then switched to catering to the international tourist trade…. 79. Another major area of concern related to tourism has been foreign paedophiles who seek commercial sex services from children, both female and male, in Thailand… Part 2, paras. 69–79. Ibid., Part 2, para. 81. Ibid., Part 2, pp. 32–34. Ibid., Part 2, para. 126. Ibid., Part 2, p. 37. Ibid. As the report noted: a foreign woman who married a Thai can apply for Thai citizenship, but the same right does not apply to an alien man married to a Thai woman. However, in April 1996 the Cabinet approved resolution to give foreign men with a Thai spouse the same rights as foreign women in the same situation…. (with regard to land) Any Thai who is married to a foreigner is forbidden from owning property in Thailand… Although this law applies equally to men and women, in practice only Thai women with foreign spouses suffer from it. As their identity card will reveal

61 62 63 64 65

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67 68

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both their marital status and their husband’s non Thai surname, the law is easily enforced against them. Even if they inherit property from their parents or other family members, they are forced to dispose of it within 180 days. Part 2, para. 137. Ibid.: However, the overall level of education still remains low, as indicated by the 1992 figures on opportunity rates. Only 49.96 per cent of girls and 51.22 per cent of boys eligible entered lower secondary. For upper secondary, the levels were 27.06 for girls and 26.88 for boys. Thus about half of the appropriate age groups in 1992 still did not go beyond primary schooling, and a further quarter were not able to progress beyond lower secondary. More recent gender-segregated statistics are not yet available, although it is known that for the year 1995 there were 3, 739,876 secondary pupils, still approximately 50% of the total number of the relevant age group. Part 2, para. 148; the situation is equal at the tertiary level. para. 151; at the university level, some quotas were also imposed to the disadvantage of women and the ncwa was campaigning to remove them, para. 166; interestingly the drop out rate generally is approximately equal among the genders. Part 2, para. 170. Ibid., Part 2, para. 174. Ibid.: There were other discrepancies: 176. Women’s rate of participation in the workforce is lower than men’s at most age groups, but there is a significant exception among urban women aged from 13–24. The demand for female domestic helpers, factory workers and in service industries (particularly restaurants) has created many opportunities for young women to begin work. Often at younger age than males. This means, however, that these women may be drawn away from educational opportunities, which may limit their future employment options. 177. Overall, women tend to be concentrated in lower status and more lowly paid positions. The August 1993 Labour Force survey found that women were only 19 per cent of employers, 28 per cent of self employed workers and 38 per cent of government employees. They did, however, constitute 66 per cent of unpaid family workers. The same survey showed that the average wage for a male manufacturing worker was 6,138 baht/month, compared to 4, 298 baht for his female counterpart (70 per cent of the male total). In services wage disparities were even greater, with average male municipal wage of 5,687 compared to female average of 3,502 (62 percent). In non municipal areas the average wage for a male agricultural worker was 2,153 compared to 1,735 for female workers (81 per cent). paras. 176–177. Concerns were also expressed on home workers and older women. Measures to be underlined included equal remuneration, social security, health and safety, maternity leave. Part 2, paras. 176–177. Ibid. The report put the position as follows: Medical services in Thailand are available to all on a non-discriminatory basis. Free health care is available in State hospitals to those who cannot afford to pay for treatment. Individuals earning less than 2000 baht a month and couples less than 2800 a month are eligible for a social welfare card that provides free treatment in government hospitals. Senior citizens (over 60 years of age) and children under 12 automatically receive free

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77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93

chapter 2 treatment. This covers doctor’s fees, medication costs, in-patient accommodation surgical fees and necessary medical equipment. However, it is acknowledged there is greater demand than supply for these services, and patients may wait months or years for treatments such as joint replacements or organ transplantation. Part 2, para. 201. Ibid., Part 2, pp. 52–54. Ibid., Part 2, para. 227. Ibid., Part 2, para. 257. Ibid., Part 2, para. 276. Ibid., Part 2, para. 281–288. Ibid., Part 2, para. 291. Ibid. 294. Betrothal and marriage can take place only when both parties have completed their seventeenth year of age, although for individuals under 20 consent of their parents is also required. For an individual below this age to marry, the consent of a parent or guardian and a court is necessary. Under these conditions, the implied minimum age would normally be 15, the age of consent. Section 277 under Offences relating to sexuality in the Criminal Code does, however, state that if a man has sexual intercourse with a girl over 13 but not yet over 15 years of age, with the girl’s consent, the Court may grant the couple the right to marry and the man will not be punished. Part 2, para. 294. Report of cedaw, supra note 6, para. 214. Ibid., para. 216. Ibid., para. 220. Ibid., paras. 222–224. Ibid., para. 227. Ibid., para. 229. Ibid., para. 232. Ibid., para. 233. Ibid., para. 234. Ibid., para. 235. Ibid., para. 236. Ibid., para. 243. Ibid., paras. 244–245. Ibid., para. 246. Ibid., paras. 247–248. Thailand Report, CEDAW/C/THA/4-5 (24 June 2004), supra note 7. Ibid. Salient developments included the following: 8. The economic changes that Thailand has faced have affected individuals…the family institution, and communities. Recently, however, Thailand has made progress in several social sectors, most notably, education, public health, social welfare, the legal system and assistance, and the protection of people’s rights. 9. …in 2001, the Health for All or 30 baht for every disease policy has been given priority. This project aims to reduce overall national expenditure and personal health care costs, while creating equal opportunity for all in accessing basic public health services….

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96 97

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For education, the illiteracy rate in 2000 was 7.71%. Moreover, 48.47% of women had primary school education, 49.8% completed lower secondary education, while 56.69% completed tertiary education. Important improvements have come about from the National Education Act of 1999 which focused on learning reform, raising the status of teaching as an occupation, establishing mechanisms to guarantee a quality education, developing media and educational technologies, and making adjustments to administrative and managerial structures. paras. 8–21. Ibid. With respect to equality within the family (Article 16), Thailand is making an effort to enact various laws to promote such equality: for example, amendments to the law pertaining to rights of women to choose their last name, their marital designation (e.g. Miss, Mrs.), together with proposing a law concerning violence in the family. para. 22. Ibid. 24. However in October 2002, a structural change in all ministries and departments occurred. The oncwa was transferred to the newly formed Ministry of Social Development and Human Security, which is mandated to develop, assist and protect children, youth, women, the elderly and persons with disabilities, as well as manage welfare and rehabilitation. The Office of Women’s Affairs has been set up under this new Ministry and is combined with family development. para. 24. Ibid. para. 27. Ibid. 30. Article 30 in the 1997 Constitution specifies equal opportunity for all persons. To promote equality and equal roles for men and women, the Thai Government has launched a policy for every agency to assign a high-ranking official to formulate gender sensitive policies and monitor their implementation. A focal point is assigned the task of overall coordination to ensure gender equality in operations, including drawing up a Master Plan for promoting gender equality in operations, including drawing up a Master Plan for promoting gender equality and integrating the principles of gender equality into the projects and programmes of all agencies. The National Commission on Women’s Affairs (ncwa) submitted a proposal to the Cabinet to appoint an executive administrator responsible for promoting the roles of women and men, with the title of Chief Gender Equality Officer (cgeo), as well as to establish a coordination centre for gender equity (Gender Focal Point) in every ministry and department. The person assuming the position of cgeo must be a high level administrator (at least Deputy head of each Ministry and department) and believe in the potential and abilities of all persons without regard to sex. He or she must also undergo training in gender mainstreaming and gender advocacy. The Cabinet approved this proposal on 31 July 2001. 31. The mandates and responsibilities of the cgeo are to: (1) Promote equality within government organizations to create favorable understanding and cooperation among male and female government officers. This will be implemented by organizing activities according to the Master Plan. (2) Initiate and organize activities to create gender awareness among government officials. (3) Monitor, inspect, hear complaints and provide consultation and advice to ­ensure that personnel management in government agencies conforms to the principles

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of equality and human rights and the guideline for creating and promoting equality among men and women in the civil service. (4) Build a network for gender mainstreaming among government organizations in order to exchange information and perspectives on gender and the organization of common activities. (5) Control and supervise the implementation of Gender Focal Points to monitor and report on implementation. 32. The Gender Focal Point will be created and supported in the following manner. (1) Every government agency will supervise the appointment of a Gender Focal Point. (2) The Gender Focal Point’s is mandated to administer activities for the cgeo according to the Master Plan on gender promotion, including monitoring, evaluation and the reporting of activities on gender and equality promotion within government organizations. (3) Each government agency must establish a committee to monitor gender equality activities and implementation of the Gender Focal Points with the cgeo as the Chairperson, and with committee members who are knowledgeable and understand issues of concern. (4) Government organizations will report their implementation activities on the promotion of gender equality, together with gender mainstreaming activities, according to the Master Plan by 31 January of each year. paras. 30–32. 98 Ibid., para. 34. 99 Ibid. 39. The vision that embraces the Women’s Development Plan includes the following: (1) All women develop to their fullest potential in all fields and become valuable human resources, self-reliant and able to live with dignity throughout their lives. (2) All women have the right to participate in decision-making at all levels. (3) All women are protected from family, community and society and are treated on an equal basis with men. (4) Women benefit from effective and strong management and administration aiming at the advancement of women. 40. The Women’s Development Plan during the Ninth nesdp (2002–2006) consists of five strategies for women’s development, namely: (1) The improvement of women’s potential. (2) The participation of women in all levels of decision-making. (3) The promotion of equality and social protection. (4) The improvement of mass media regarding women’s issues. (5) Development of organizational and administrative managerial mechanisms for women’s issues. para. 39. 100 Ibid., with these consequences for women: 45. Within the short period since its implementation, the Village and Urban Community Funds have been reasonably successful. Likewise, women’s participation as fund members has been satisfactory. For instance, in Surin province, 2,053 funds have been established entailing a total of 30,260 members (an average of 14.7 persons per fund).

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Of this total, 18,866 members are men (average of 8.7 persons per fund) and 12,394 have been women (average 6 persons per fund). There are 1,934 male ­chairpersons and 119 female chairpersons. From such figures, women appear to be participating in managing funds and in voicing their perspectives and needs. The ­ultimate aim is for women to share equally in the benefits with men, which will lead to greater gender equality at the grassroots level and ultimately at the national level. 46. In addition, Thailand has implemented several temporary special measures, some of which have been successful while others require further development. The latter include attempts to specify a certain proportion of women in various national committees and to specify an equal proportion of men and women on sub-district administrative committees. paras. 45–46. 101 Ibid., paras. 55–58. See also: 62. The Constitution and the Law (1) The 1997 Constitution addresses the issue of violence in Section 53 which notes “children, youth and family members shall have the right to be protected by the government from violence and unfair treatment.” This statement demonstrates clearly society’s concern about the problem of domestic violence. This concern is heightened even further by the fact that representatives of people from all walks of life drafted the Constitution, which is recognized as the highest law of the land. (2) One piece of legislation related to violence against women that has been amended is the Criminal Law on interrogating persons 18 years of age or younger who have been accused of, are victims of, or witnesses to sex-related crimes. The purpose of the amendment is to make the interrogation process more child-friendly and allow children to testify without enduring further hardship. The law specifies several procedures that must be followed, including having a psychologist and social worker participate in the interrogation process and to avoid confrontation between the accused and the victim or witness. (3) The Legal Advisory Sub-committee of the ncwa has appointed an ad hoc committee to draft a law on domestic violence (which will serve as a specific law) covering measures to deal with the problem appropriately. The law can assist victims of violence, setting up an optional procedure to alter an offender’s behavior through a court order instead of relying only on criminal punishment. The draft law is expected to be submitted to Parliament in 2003. 63. Government Policies and Measures. (1) Cabinet Resolutions on 29 June 1999 endorsed “eight measures to solve problems concerning violence against women” as proposed by non-governmental organizations through the ncwa. Those measures are to guard women’s safety both within the family and in public. They include the suppression of pornography, improvement in sex education, and the improvement of services to victimized women, most notably in speeding up the establishment of a center for assisting women in crisis in the emergency section of public hospitals. (2) On 16 May 2000, the Cabinet also approved Policies and Plans to Eradicate Violence against Children and Women as proposed by the ncwa and drafted by representatives of government organizations, the private sector and academicians.

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chapter 2 Such policies and plans serve as guidelines for concerned agencies to initiate projects and activities that correspond to their own mandates. 64. Several efforts have been made in terms of providing assistance services for victims of violence such as the following. (1) A one-stop crisis service center has been established in several hospitals. The center provides medical treatment (physical and emotional) and consultations on social welfare and legal matters for victims of violence. In the Bangkok area, such centers were established in seven hospitals under the Bangkok Metropolitan Administration (bma) in 1998 through the cooperation of the ncwa and bma. Several centers have also been established in a number of provinces, starting with the Khon Kaen provincial hospital, followed by 20 hospitals under the Ministry of Public Health. However, those centers still require additional support in terms of personnel, budget and information dissemination to the public, so that people will have enough confidence in the centers to make use of them when needed. (2) A 24-hour Hotline Center at the Department of Public Welfare has been set up to provide counseling services and handle grievances and complaints, and is staffed by social workers and psychologists. Moreover, the center is responsible for coordinating the referral of victims to concerned agencies. Since 1993, the Department of Public Welfare has also provided another phone service (Happy Line), which revealed that many problems being faced by children, women, the elderly and the disadvantaged stem from economic hardship. The Department has subsequently made adjustments to their services to make them more timely and effective. (3) The Center for the Protection of Children, Youth and Women within the Police Department was established in 1998 through the collaboration of government and private organizations responsible for assisting children, youth and women whose rights have been violated, especially in cases of assault and sexual violence. Such assistance has been improved to become more “victim-friendly” with the center’s officers receiving training to understand more thoroughly the problems being faced by these vulnerable groups. This improvement in assistance is also in line with the new procedure used to take testimony under the revised Criminal Penal Code 1999. However, the availability of such protection centers is still limited to Bangkok and the three provinces of Chiangmai, Songkhla and Chonburi. 65. In addition to government agencies, various non-governmental organizations (ngos) have also played a great role in protecting and assisting children and women who are victims of violence. These ngos include the Friends of Women Foundation, the Hotline Center Foundation, Women’s Foundation, Child Rights Protection Foundation, Child Protection Foundation, and the Paveena Hongsakul Foundation for Children and Women, amongst others. ngos in Thailand are extremely essential, since they are more flexible and can respond more rapidly in assisting victims. Most ngo workers, either voluntary or permanent, are knowledgeable and experienced. Furthermore, ngos work closely with government organizations, which results in more efficient protection and assistance, as well as in continually developing and

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i­mproving upon coordination efforts, a key feature in assisting victims of violence in Thailand. 66. Several organizations have initiated research studies on violence against women. The Institute for Population and Social Research at Mahidol University, the Foundation for Women and who have jointly conducted research on “Violence against Women in Marriage.” Moreover, the Health Systems Research Institute has collaborated with various agencies in conducting a series of studies on violence against women and children. paras. 62–66. 102 Ibid. The Trafficking in Women and Children Law refers to “The Measures for the Prevention and Suppression of Trafficking in Women and Children Act of 1997.” This law is for offenders who buy, sell, distribute, bring from or send to, receive, hold, detain or provide women or children to commit or accept any action leading to sexual gratification of another or for other obscene purposes, or in order to unfairly exploit for benefit of oneself or others, whether the concerned women or children consent to it or not. The penalty is up to five years imprisonment, a fine of up to 10,000 baht, or both. This law also provides witness interrogation of women and children beforehand, whether or not the offenders can be arrested. This is to protect witnesses from threats and to gather evidence for later prosecution. 78. The law covering the exploitation of women in commercial sex work is “The Prostitution Prevention and Suppression Act of 1996.” This Act specifies a penalty for a procurer, commercial sex supporter, owner, manager, supervisor in a commercial establishment, advertiser, parents, or guardians who knowingly allow women or children under their control to engage in sexual services, and the client who engages in sexual relation with children under 18 years of age. 79. Other laws related to the trafficking and exploitation of women in the commercial sextrade are as follows. (1) Amendment to Penal Code Act (No.14) 1997 which extends the penalty for offenders who exploit women and children in cruel working conditions, forced begging, as well as similar offences against boys, including offences conducted outside Thailand, giving the Thai court the authority to prosecute. (2) Amendment to Penal Code Procedure (No. 20) 1999 defines the interrogation process for child victims or child witnesses both in the process of investigation and in court. It specifies that a separate and appropriate place must be provided for their testimony. Psychologists, social workers or any persons requested by the child witness/victim and the general prosecutor must participate in the investigation procedure. In cases where a witness must leave the country or he/she does not have permanent residence, a testimonial must be conducted immediately. The court testimony process may use video-tape or the recording of testimony given at the interrogation. (3) The Prevention and Suppression of Money Laundry Act of 1999 defines the confiscation of money or property obtained from conducting or supporting the conduction of sexual offences according to the Penal Code. This concerns particularly those who procure, lure or bring women and children for sexual purposes or according to the Prostitution Prevention and Suppression Act, especially concerning such actions as they are related with owning, supervising or managing

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commercial sex businesses, and including sex workers in commercial sex establishments…. paras. 77–79. See also: 81. Although prostitution is illegal in Thailand, the laws do not punish all prostitutes, particularly those who are victims of violence. The Prostitution Prevention and Suppression Act of 1996 only prescribes penalties for those women who offer sexual services through persuasion or insistence on the street or in public places, thus causing annoyance or embarrassment. They are subjected to a fine of not more than 1,000 baht. In case of sexual services offered in brothels, the penalty is imprisonment for one month, a fine of not more than 1,000 baht, or both, unless they are being forced to provide sexual services. If they advertise, persuade or introduce themselves by using the mass media or other means of public information dissemination, and in the form of clearly asking for or contracting sexual services, the punishment is six months to two years imprisonment and a 20,000 to 60,000 baht fine. On the other hand, the law provides no penalty for prostitutes who offer sex services independently, while also not accepting the legality of prostitution. Children below the age of 18 who are forced into commercial sex work are considered victims and are returned to their families with no charges being made against them. Children who voluntarily enter the sex trade are sent to a public welfare shelter for vocational training. 82. The Prostitution Prevention and Suppression Act of 1996 imposes a penalty on brothel owners or whoever, for the sexual gratification of another person or a third party, commits sexual intercourse or any other act against a person who is below the age of 18 without his or her consent. The punishment is imprisonment for one to three years and a fine of 20,000–60,000 baht. If such an offense is committed to a child under the age of 15 years, the offender shall be imprisoned for two to six years and a fine of 40,000–100,000 baht. However, in practice, only a few such cases are reported. The owners of sex businesses, procurers and agents are considered to be involved in the sex trade and will receive a heavier penalty since they violate women’s rights and freedom and destroy their dignity. If the women are below the age of 15 years, the offenders will face the highest penalty of imprisonment for 10–20 years and a fine of 200,000–400,000 baht. In cases where prostitutes are not willing to sell their services but are forced to do so, the Penal Code on sexual offence classifies this act as rape. In practice, though, no such case has been reported, possibly because of the prevailing attitude that prostitutes are not rape victims but are participating voluntarily in the commercial sex industry. paras. 81–82. 103 Ibid. 83. In 1996, Thailand has formulated a National Policy and Plan of Action for the Prevention and Eradication of Commercial Sex Exploitation. Moreover, a National Policy and Plan for the Prevention, Suppression and Eradication of the Commercial Sexual Exploitation of Children and Women has been in the process of drafting since the year 2000 and is expected to be completed and entered into force by the end of 2002. This new policy and plan specifies measures to address the complete cycle of trafficking in women and children within the country and across borders. The plan comprises prevention, assistance and protection, legal procedures and suppression, repatriation and social rehabilitation, establishment of an information system, monitoring and

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105 106 107

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evaluation, an administrative and management development system, as well as an international cooperation plan. The plan also has an explicit direction for concrete implementation and focuses on cooperation at all levels, from national to local, and including an implementation mechanism. para. 83. Ibid. 84. Thailand has continuously implemented preventive measures for the commercial exploitation of women, particularly in terms of education and increasing women’s and children’s potential to be self-reliant and obtain employment. This has been accomplished by expanding compulsory education from 6 to 9 years, and providing 12 years of basic education free of charge, a policy that came into effect in 2002. Education reform started in 1999 through the National Education Act which aims to increase the potential for child-centered learning. For instance, 1,000 scholarships are given annually to young girls from poor families to continue their studies, as well as 100 nursing scholarships. During 1994–2001, the government assisted 60,000 impoverished girls to continue their studies and in 2002 allocated a budget for another 30,000 scholarships. Moreover and because of the 1997 economic crisis, the Department of Public Welfare (dpw) has provided occupational training for 2,500 unemployed women per year; in 2002, this number increased to 3,000 women. After completing their training, the dpw gives the women initial capital to form a group and begin an occupation. It also provides occupational loans of 15,000 baht each for those who start an independent business. In addition, the Ministry of Education has provided 10,500 short-term occupational training scholarship for poor women. 85. To protect women and young girls who are at risk of entering the commercial sex trade, the government has formulated a Long-Term Policy and Plan for Family Development (1995–2005), with a Five-Year Action Plan (1997–2001) that focuses on community-based family well-being, family advice services, and the elimination of violence in the family. On the social front, Thailand is well-known for having numerous entertainment places throughout Bangkok and other large cities. These locations have become gathering places for adolescents at night and have created conditions that make them vulnerable to the commercial sex trade. In 2001, the Ministry of Interior initiated a “Social Order Policy” that prohibits children under 18 years from visiting such entertainment places, specifies an early closing time and sets up zones for entertainment establishments. para. 84. Ibid., paras. 88–92. Ibid., para. 109. Ibid. As for the access to political process: 103. Article 68 of the 1997 Constitution specifies that everyone has a duty to vote, which means that both women and men should exercise this right equally during elections. Sex ­disaggregated data are available in this regard for the Senatorial election in 2000 and the House of Representatives election in 2001. Unfortunately, since responsibility for such information collection has changed from the Department of Local Administration (which formerly collected such data) to the Office of the National Election Commission, such i­nformation is no longer collected. Nonetheless, local elections remain under the responsibility of the Department of Local Administration, and their data show that women are using their right to vote, even more

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so than men. For example, for the ­Local ­Administration Council election in 2001, women’s votes comprised 51.75% of the total. For the Municipal Council election and that of the Provincial Council in 2000, women cast 53.9% and 52.2% of the votes, respectively. Moreover, data collected since 1995 to the present time indicate that 52.32% of women at all levels exercised their right to vote. 104. The first Senatorial election occurred in Thailand in 2000; previously, ­senators were  appointed. Vying for the 200 Senate seats (six-year term) were 1,532 candidates (1,418 men; 114 women or 7.4%). Women represented 9.5% of those elected. Irregularities resulted in two additional elections, wherein the proportion of elected women increased to 10.5% (compared to 8.5% in 1996 when they were appointed). Presently, women hold 10% of Senate seats. The election for the House of Representatives (four-year term) in 2001 employed a new election system, with candidates coming from a party list (100 persons) and from each electoral area (400 persons). There were 3,163 male (86.8%) and 483 female (13.2%) candidates. Forty-six women were elected or 9.2% of the total. Compared to 5.6% in 1996, much progress has been made in raising the percentage of women in the House of Representatives, though the proportion remains low compared to men. In March 2002, in a supplementary election, two additional women were elected, representing a decline from four women who were previously elected but had to stand for re-election. 105. Data from the Department of Local Administration in March 2002 shows that the local government administration was divided into 75 provinces, 795 districts, 81 branch districts, 7,255 sub-districts, and 71,864 villages. The Thai population in 2000 was 61,878,746 people (30,725,016 men; 31,153,730 women). There were 1,129 municipalities (20 city municipalities; 80 urban municipalities; 1,029 rural municipalities), 75 provincial administrative councils; 2 special local administrations (Bangkok and Pattaya), 6,744 local administrative councils, and 214 sub-­ district councils. paras. 103–105. See also: 106. In terms of local elections, progress has been gradually made in increasing the proportion of female representatives, most of whom are serving four-year terms (Table 3). 107. Currently, data on local government councils at all levels, including village and sub district headpersons, show that women’s participation in local politics is lower than that of men. The proportion of women also declines as the level of the position rises. However, women are being increasingly elected into local government positions. For instance, women represented 6.9% of local administrative council members in 2000, while in 2002 this proportion increased to 8.9%. paras. 106–107. 108 Ibid., paras. 131–136. 109 Ibid.: 142. Article 30 of the 1997 Constitution states that all persons shall enjoy equal rights before the law and receive equal legal protection. Following the Cabinet’s approval on 11May 1999, the Ministry of Interior has abolished the criteria limiting the right to own land by Thais married to foreign nationals and their children by setting new criteria to correspond with the Constitution.

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143. Consequently, Thai persons – both men and women – who are married to foreign nationals retain the right to purchase land in the country, but that “right” is contingent upon the Ministry of Interior’s regulation regarding national security. The rationale for the regulation is to prevent legal loopholes that would allow foreign nationals to hold large amounts of land, leaving little for the native Thai people. 144. Currently, there is no law prohibiting Thai men or women with a foreign spouse to own land, but it must be for personal use and not for use by other foreign nationals. However, there remains a discrepancy in regard to the nationality act 1965 which did not yet accord equal rights to Thai men and women who marry foreigners and seek Thai nationality for their spouse; there are fewer conditions in relation to the former who have foreign spouses, despite ncwa’s advocacy of the need for law reform. paras. 142–144. 110 Ibid., paras. 146–150. 111 Ibid., paras. 154–163. The dynamics of education and the social context are summed up as follows: 170. In summary, Thai girls and boys have equal access to education. No rules nor regulations exist that prohibit women or men of any age from studying in any area, except in military and police academies (however, female students enrolled at the upper secondary level can choose defense training along with male students). Female students often realize that they have expanded educational opportunities. In practice, however, deeply-rooted social attitudes regarding the sexual division of labor restrict their choices of study to those most suited to the traditional roles of women (e.g., social science, nursing), and excluding vocational education. Although the discrimination of women in education is not as serious as it has been in the past, it has not been eliminated. Key social institutions (family, education, employment) accept and foster traditional gender roles in domestic and public spheres. The family is the social institution that is closest to and has the most influence over children. In selecting programs or fields of study, the first advice/guidance children are given usually comes from the family, which tends to favor girls taking on more traditional, stereotyped gender roles and occupations. Moreover, most school counselors still do not have a gender sensitive perspective, and employers still discriminate against women in some areas of employment such as civil engineering and forestry. The elimination of discrimination in education thus requires more time for raising awareness and understanding in Thai society about the advantages of supporting women and men to enter a broad range of studies and occupations. para. 170. 112 Ibid. 173. The Population and Housing Census for 2000 reported that 34.1 million persons (17.6 million men or 51.6%; 16.5 million women or 48.4%) aged 15 years and older were employed during the one year period of 1 April 1999–31 March 2002. The proportion of women in the labor force was 48% of the total (47% in 1990), and accounted for 54% of all women in the population (52% in 1990). Men in the labor force accounted for 59% of the total male population (60% in 1990). Such figures indicate that women are an important part of Thailand’s labor force and will be even more so in the future. Among the employed labor force, 55.17% were in

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113 Ibid. 205. The Social Insurance Act of 1990 came into effect on 2 September 1990. It specifies the types of benefit compensation for guarantors as being in cases of sickness, birth, disability, death, child allowances, old age, and unemployment. An insurer is an employee who is at least 15 years of age and not over 60 years. Initially, enforcement was undertaken among businesses with at least 20 employees. It was amended in 1993 to include businesses with at least 10 employees, and has since (as of April 2002) been enforced for businesses with at least one employee. Employers and employees must contribute a monthly amount to the insurance fund at 3% of wages (1 January 2001–31 December 2002), and the government will make further contributions. para. 205. and 206. An expansion in coverage has increased the number of insurers from 5.86 million (December 2001) to 9.44 million, and the number of establishments from 110,814 to around 1.35 million, covering 30% of the labor force (from the previous 18%). This expanded coverage includes not only the insurer’s health, but also other benefits, for example, disability, death (both work-related and non work-related), child delivery, child allowance and old age. In terms of expanding insurance coverage to the unemployed, the Social Insurance Commission has approved a model, conditions, criteria as well as an implementation modality. It has also established an information system by setting up a data communication network to coordinate with all concerned organizations. Sickness benefits have also been expanded to cover more types of diseases, as well as expanding the duration of a hospital stay from 180 days in one year to over 180 days in one year. 207. Social Insurance in Thailand protects workers in the formal sector, while workers in  the agricultural sector, those in the informal sector and home workers, which ­comprise the majority of the Thai labor force, are still not protected. Although the law allows informal sector workers to voluntarily insure themselves by paying double the contribution, while the government contributes an additional portion,  their low and uncertain incomes make them reluctant to participate in the system. 208. However, the Ministry of Labour and Social Welfare has made an effort to include homeworkers in the social insurance system by enacting a law to give fair protection from any situation that poses an obstacle to their living and working conditions. The law is currently being drafted. paras. 206–208. 114 Ibid., para. 214. 115 Ibid., para. 228. 116 Ibid., para. 237. 117 Ibid., para. 242 and in the spirit of self reliance, these programmes were targeted to rural areas with impact also on women: 243. The government is paying particular attention to women’s development in rural areas through the promotion of a self-sufficient economy, encouraging self-reliance

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within local communities and empowering village members. The Village and Urban Community Fund is one such mechanism through which community members and small scale entrepreneurs can gain access to needed capital to support supplementary occupations and increase income. 244. The government is also promoting the “One Sub-district, One Product Project” as another community development strategy. It focuses on creating jobs as well as sustainable and stable incomes, so that community members can ultimately become self-reliant and economic recovery at the grass-roots level can be achieved. The Thai government has given priority to this project in order to link with and facilitate the policy on debt relief for farmers even to the extent of providing Internet services to sub-districts. 245. The government is also undertaking a three-year debt relief project for small farmers that aims to urgently solve farmers’ indebtedness by establishing a complete cycle of recovery and providing assistance to restructure production. 246. As noted above, the “People’s Bank” expands opportunities for low income persons by increasing their access to financial resources and reducing their dependency on informal funding sources. The Bank’s loans are intended to help create jobs and raise incomes. The government has also recognized the need of those who want to invest in micro-enterprises but lack sufficient capital or assets that can be used as collateral for regular bank loans. The People’s Bank, which operates through the Government Savings Bank, provides these people with initial capital without requiring collateral, relying instead on personal guarantees based on personal capacities. 247. Over 95% of villages and sub-districts have local women’s groups, as do 93% of districts and 89% of provinces, all of which are under the responsibility of the  Department of Community Development. Although some women’s groups are highly ­efficient in promoting women’s occupational development and p ­ rotecting their rights, others are not as capable. Success depends on leadership and how well the women’s groups are accepted by communities and their leaders. 248. Cooperatives – particularly those related to agriculture, fisheries, land allocation and savings – are extremely important for rural people. A study in 1991 demonstrated that the proportion of women as general members and committee members was much lower than that of men especially in terms of productive activities. For ­example, among 1,797 agricultural cooperatives, women comprised only 22% of the membership, while only 3% held administrative positions. 249. However, women play a greater role in savings cooperatives (of which there were 878 registered cooperatives in 1993), where women constitute 38% of the members and 15% of administrative positions. Not surprisingly, women represent a large group of members among the 345 existing consumer cooperatives, comprising 20% of ­administrative posts. One existing regulation that can obstruct women’s participation in the cooperative is the condition that “only one family member can be elected to a position in the cooperative.” Social expectations make it such that this person should be the male head of the household. paras. 243–249. Ibid., paras. 255–257. Ibid., para. 268–281; 281. cedaw Comment, supra note 7, paras. 5–9. Ibid., para. 11.

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122 Ibid., para. 14. 123 Ibid.: 15. The Committee is concerned that, although Section 30 of the Constitution guarantees equal rights for women and men, there is no explicit definition of discrimination against women, in accordance with Article 1 of the Convention, which prohibits ­direct and indirect discrimination, in the State party’s legislation. 16. The Committee encourages the State party to incorporate in its Constitution or the Gender Equality Bill currently being drafted the full definition of discrimination, encompassing both direct and indirect discrimination, in line with Article 1 of the Convention. It also calls on the State party to provide training for lawyers, judges and law enforcement officers on the Convention and the procedures under its Optional Protocol and to develop the capacity of women to claim their rights. paras. 15–16. 124 Ibid.: 17. While appreciating that the total budget allocation of the Office of Women’s Affairs and Family Development has constantly been increased since 2003, the Committee is concerned that the relocation of the national machinery for the advancement of women from the Office of the Permanent Secretary to the Ministry of Social Development and Human Security may undermine the authority of the national machinery to carry out its gender mainstreaming efforts and coordination across all sectors. 18. The Committee calls on the State party to undertake an in-depth evaluation of the ­national machinery for the advancement of women in order to assess whether the reform resulted in its reduced effectiveness, as well as an evaluation of all other ­institutional mechanisms, such as the gender focal points, the gender equality master plan and the civil service policy guidelines on gender equality. Based on this evaluation, the State party is called upon to make the necessary adjustments in order to  ­ensure a strong  ­institutional mechanism for the promotion of gender equality. paras. 17–18. 125 Ibid., para. 19. 126 Ibid.: 21. The Committee expresses concern that although the 1997 Constitution allows for preferential treatment of certain groups, no provision is contained in laws and regulations for temporary special measures aimed at accelerating the de facto equality of women. As a result, no such measures are being adopted to increase women’s participation in decision-making bodies on an equal basis with men, except in the selection of commissioners for the National Human Rights Commission and members of the Village and Urban Fund Committee. 22. The Committee encourages the State party to expeditiously introduce temporary special measures, in accordance with article 4, paragraph 1, of the Convention and the Committee’s general recommendation No. 25, to accelerate the realization of women’s de facto equality with men in all areas. It also recommends that the State party include provisions for temporary special measures in the Gender Equality Bill, in particular with regard to women’s participation in decision-making and access to economic opportunities. paras. 21–22.

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127 Ibid.: 24. The Committee urges the State party to accord priority attention to the adoption of comprehensive measures to address violence against women and girls in accordance with its general recommendation No. 19 on violence against women and the United Nations Declaration on Violence against Women. The Committee encourages the State party to proceed expeditiously with the completion and enactment of the “draft Act on the Prevention and Resolution of Domestic Violence” and to ensure that women and girls who are victims of violence have access to immediate means of redress and protection and that perpetrators are effectively prosecuted and punished. The Committee also calls upon the State party to amend the definition of rape in the Penal Code by deleting the exemption for marital rape so as to make it a criminal offence. The Committee recommends gender-sensitivity training for law enforcement personnel, the judiciary, health service providers and teachers to ensure that they are sensitized to all forms of violence against women and can respond adequately to it. The Committee also calls on the State party to take measures towards modifying those social, cultural and traditional attitudes that are permissive of violence against women. para. 24. 128 Ibid., paras. 25–26. 129 Ibid.: 28. The Committee calls upon the State party to expedite the adoption of the draft Prevention and Suppression of Human Trafficking Act and to ensure that offenders are punished and victims adequately assisted. It also recommends that the State party address the root cause of trafficking by increasing its efforts to improve the economic situation of women, thereby eliminating their vulnerability to exploitation and traffickers, as well as measures for the rehabilitation and social integration of women and girls who are victims of exploitation and trafficking. The Committee also calls upon the State party to implement measures aimed at combating sex tourism, including in cooperation with tourists’ countries of origin. para. 28. 130 Ibid.: 30. The Committee recommends that the State party adopt and implement temporary special measures to increase the number of women in decision making positions, in particular, to establish benchmarks and timetables, and consider the use of quotas to achieve them. The Committee invites the State party to also encourage political parties to use such quotas. The Committee calls upon the State party to implement training and awareness-raising programmes to highlight the importance of women’s participation in decision making at all levels, including at the international level, and to create enabling, encouraging and supportive conditions for such participation. The Committee also recommends that the State party develop more systematic data collection on women’s participation in political and public life. para. 30. 131 Ibid.: 31. The Committee notes with concern that certain provisions of the Nationality Law described in the report continue to discriminate against Thai women who marry foreign men. In particular, it is concerned that while Thai men may extend their citizenship to their foreign wives, non-Thai men who marry Thai women need to reside in Thailand for more than five consecutive years before being able to obtain citizenship. para. 31.

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132 Ibid., para. 34. 133 Ibid.: 36. While commending the State party for having committed itself to bringing about peace in the south of the country and for having paid remedies to families of those deceased and injured as a result of the unrest, the Committee recommends that the State party ensure that all women in the south have access to health care, social security, economic resources and opportunities for education and skills training to enable them to rebuild their lives. It also encourages the State party to provide increased educational opportunities to girls to discourage early marriages. para. 36. 134 Ibid., para. 38. 135 Ibid.: 40. The Committee recommends that the State party strengthen the implementation of programmes and policies aimed at providing effective access for women to contraceptives and health-care information and services with the aim of avoiding the need for women to resort to illegal abortions. The Committee urges the State party to implement programmes of sexual and reproductive health education for women, men and adolescents in order to foster responsible sexual behaviour, and to increase its efforts to promote male contraception. para. 40. 136 Ibid., para. 42. 137 Ibid., para. 44. 138 Ibid., paras. 46–50. 139 The new report 2014 awaits publication by the un. 140 The new gender discrimination law was passed in mid-2015 and was discussed before the icescr Committee. Royal Gazette, Vol. 132, Part 18 Kor (13 March B.E. 2558), pp. 17–27 (in Thai). See Chapter below. 141 Names case. Constitutional Court Ruling 21/2546, Ombudsperson Request Constitutional Court to Decide on Constitution Section 198 re constitutionality of Names Act 2505, Section 12, Royal Gazette, Vol.121 Part 17 Kor (5 February B.E. 2547), pp. 75–81 (in Thai). Also: Chalermpon Ake-uru, “The Role of the Constitutional Court in the Protection of the Rights and Liberties of the People: The Case of Thailand,” in The Constitutional Court under the Rule of Law in a Democracy under a Constitutional Monarchy (SARN RATTHATHAMMANUN PAI TAI LUCK NITIDHARMA NAI KARN POKRONG RABORB PRACHATHIPATHAI UNN MEE PRA MAHAKSATRIYA TSONG PEN PRAMOOK) (Bangkok: SATHABAN RATTHATHAMMANUN SUKSA, 2013), pp. 37–87; 50; Sittiporn Sabayon, “Equality according to the Provisions of the Constitution” (KWAM SAMOE PARK TAM BOT BANYAT RATTHATHAMMANUN), ibid, pp. 333–90;375 (in Thai). 142 Sittiporn, ibid., pp. 383–386. (on the Tax case and Constitutional Court Ruling 17/2555). See further: on the Tax case: Constitutional Court Ruling 17/2555 (2012), Ombudsperson Request Constitutional Court to decide on Constitution Section 245(1) re constitutionality of Revenue Code, Section 40 (2) (3) (5) (6) (7) and (8), Section 57 (Tri) and (Benj), Royal Gazette, Vol. 129, Part 117 Kor (21 December B.E. 2555), pp. 53–64 (in Thai). Constitutionalcourt.or.th [homepage on the internet], The Constitutional Court Ruling 17/2555, http:// www.constitutionalcourt.or.th/index.php?option=com_docman&task=cat_view&gid=49 5&Itemid=210&lang=th (accessed 22 October 2015).

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143 Case No. 37/2546 Constitutional Court, Re Nationality Law 2508 Section 9, Royal Gazette, Vol.121, Part 41 Kor, 25 June (B.E. 2547) (2004), pp. 1–10. (in Thai). Constitutional Court Ruling 37/2546 (2003), Ombudsperson Request Constitutional Court to decide on Constitution Section 198 re constitutionality of Nationality Act 2508, Section 9, Royal Gazette, Vol. 121 Part 41 Kor (25 June B.E. 2547), pp. 1–10 (in Thai). Constitutionalcourt.or.th [homepage on the internet], The Constitutional Court Ruling 37/2546, http://www.constitutionalcourt.or.th/index.php?option=com_docman& task=cat_view&gid=145&Itemid=210&lang=th&limitstart=10 (accessed 22 October 2015). 144 The withdrawn reservations are re Articles 7, 9 (2), 10, 11(1)(b), 15(3), and 16. 145 The Temple Case, International Court of Justice (icj) 2013. 146 Criminal Procedure Code: Amendment (re gender/rape). Statute to Amend and Add to the Criminal Procedure Code (Part.19) (B.E.2550), Royal Gazette Vol. 124, Part 56 Kor (19 September B.E.2550), pp. 1–4. (in Thai). 147 Quota issue: in 2015 the draft Constitution indicated that at least one third of candidates filed by political parties must be women, but the draft was rejected. 148 Nationality Act 2008: Nationality Act (No.4) B.E. 2551 (2008), Royal Gazette, Vol.125 Part 39 Kor (27 February B.E. 2551), pp. 24–32. (in Thai). 149 Nationality Act 2012: Nationality Act (No.5) B.E. 2555 (2012), Royal Gazette, Vol.129 Part 28 Kor (21 March B.E.2555), pp. 1–4. (in Thai). 150 Violence study: Reports on Study concerned Violence against Children (Bangkok: Ministry of Social Development and Social Security, B.E. 2555 (2012)). 11 volumes. (in Thai). 151 mous re migrant workers: see: Vitit Muntarbhorn, The Mekong: Employment and Protection of Migrant Workers in Thailand: National Laws and Practices versus International Standards ? (Bangkok: ilo, 2005). 152 Rohingya plight. Economist.com [homepage on the internet], The plight of Rohingyas, http://www.economist.com/blogs/economist-explains/2015/06/economist-explains-0, 1 January 2015, (accessed 13 November 2015).

chapter 3

The Convention on the Rights of the Child (crc) and Thailand Introduction The crc was finalized in 1989 and has received almost universal ratification.1 Thailand acceded to it in 1992. The Convention covers the rights of persons under 18 and lays down a series of rights in the civil, political, economic, social and cultural fields.2 A summary of its key provisions is given in Table 7; there are some 39 articles on substantive rights, the remaining articles being on procedural issues and the mechanics of its monitoring committee. Table 7

crc: Summary of contents.

Article 1 definition of child Article 2 guarantees on rights without discrimination Article 3 best interests of the child Article 4 implementation measures Article 5 parental rights and responsibilities Article 6 right to life Article 7 right to birth registration and to acquire a nationality Article 8 right to preserve identity Article 9 right not to be separated from parents unless in the child’s best interests Article 10 right to family reunion Article 11 measures against illicit transfer abroad Article 12 respect for the child’s views Article 13 freedom of expression Article 14 freedom of thought, conscience and religion Article 15 freedom of association Article 16 right to privacy Article 17 right to access information Article 18 assistance to parents on child-rearing and right to benefit from child care services Article 19 protection from violence

© faculty of law, chulalongkorn university, 2017 | doi 10.1163/9789004326675_004

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Article 20 protection for child deprived of family environment through measures such as foster care or adoption Article 21 best interests of the child in regard to adoption Article 22 rights of refugee child Article 23 rights of child with disability Article 24 right to highest attainable standard of health Article 25 review of treatment of child placed in care Article 26 right to social security Article 27 right to adequate standard of living Article 28 right to education Article 29 aims of education Article 30 rights of a child belonging to a minority or who is indigenous Article 31 right to rest and leisure Article 32 protection from economic exploitation Article 33 protection against illicit use of narcotics Article 34 protection from sexual exploitation and abuse Article 35 measures against abduction, sale or traffic in children Article 36 protection against other exploitation Article 37 protection against torture, cruel, inhuman treatment Article 38 protection of persons under 15 from participation in hostilities (child soldiers) Article 39 measures to promote physical and psychological recovery and social reintegration of child victim Source: Author’s own table derived from OHCHR, The Core International ­H uman Rights Treaties.

The rights thus range from civil and political rights, such as the right to life and to birth registration, acquisition of a nationality, freedom of expression, association and peaceful assembly, to economic, social and cultural rights such as the right to education, health care, and adequate standard of living. There are specific measures to protect children in difficulties, such as children in armed conflicts, refugee children, victims of child labour, sale, trafficking and prostitution, minorities and indigenous children, and children in disabilities. There are four underlying principles: non-discrimination, right to life, survival and development, best interests of the child, and respect for the child’s views. Implementation of the Convention is monitored by the Committee on the Rights of the Child (crc Committee). Periodic reports are required by States Parties to enable the Committee to undertake this task and these are followed by dialogue with representatives from the countries concerned and recommendations for follow up.

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At the time of ratification, Thailand entered 3 reservations: on Article 7 pertaining to the right to birth registration and nationality, Article 22 on the rights of refugee children, and Article 29(1)(c) on the aims of education. The reservation to Article 29 was withdrawn by the time of the first dialogue with the crc Committee in 1998. The reservation to Article 7 was withdrawn just before Thailand’s most recent (third) dialogue with the crc Committee discussed below. Later the country became a party to the Protocol on the Sale of Children, Child Prostitution and Child Pornography and the Protocol on Children in Armed Conflict in 2007.3 The former provides definition of the three phenomena and calls for a range of measures including criminalization of the abuse and exploitation of children, with absolute protection for under 18’s. The latter proscribes the forced recruitment of children under 18 into the armed forces and calls for all feasible measures to ensure that under 18s do not take direct part in hostilities. It allows voluntary recruitment to some extent (from 15 years of age), but advocates that the age of protection should be raised increasingly to 18. Measures are also required to prohibit non-­governmental armed groups from using children under 18 in conflicts. Procedurally, the member State is obliged to submit specific separate reports on the initial implementation of these treaties. After the initial reports, the information is to be subsumed under the periodic reports under the crc in the subsequent phases of reporting. With regard to the Protocol on children in armed conflict, the country made a declaration upon ratifying it as in Table 8. Table 8

Declaration on military service.

Declarations: 1. Military service is compulsory by law. Thai men reaching the age of 18 have a duty to register on the inactive military personnel list. At the age of 21, selected inactive military personnel will become active military personnel. Inactive military personnel may also voluntarily apply to become active military personnel to serve in the national armed forces. Women are exempt from compulsory military service both in times of peace and in times of war, but are subjected to other duties assigned by law. 2. In times of war or national crisis, inactive military personnel (men aged over 18) may be recruited to participate in the armed forces. 3. Admittances to military schools such as Army Non-commissioned Officer School, Air technical Training School, Navy Non-Commissioned Officer School, Armed Forces Academies Preparatory School and Army, Naval, and

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Air Forces Academies is on a voluntary basis, depending on the success in the entrance examinations and subject to the consent of parents or legal guardians. 4. High school and university students regardless of gender may voluntarily apply to receive military training from the Army Reserve Command, with the consent of parents or legal guardians, without any exception. Students who complete 3 years’ training are exempt from military service (as active military personnel) when they reach the age of 21. 5. Non-governmental militias are prohibited by law, regardless of the age of persons concerned.4 Source: MSDHS, Convention on the Rights of the Child/Protocols, pp.94–5.

The most recent Protocol of the crc on possible communications by children or their representatives to the crc Committee (in the absence of local remedies) was ratified by Thailand in 2012 (as the first country to do so, together with Gabon).

Reporting Process

The country has now reported on the implementation of the crc in Thailand three times and has appeared before the crc Committee three times as follows: – Phase 1: Initial Report under the crc submitted in 1996 and Recommen­ dations/Concluding Observations from the crc Committee in 1998.5 – Phase 2: Second Report under the crc submitted in 2005 and Recommendations/Concluding Observations in 2006.6 – Phase 3: Third Report under the crc submitted in 2011 and Recommendations /Concluding Observations in 2012. The initial reports for the two ­Protocols (Sale of Children and Children in Armed Conflict) were also submitted and considered concurrently.7 Given the mass of information under the crc and its Protocols, the study will delve first into the crc, and then the Protocols.

i: crc

Particularly in regard to the crc, for the periodic national reports, the States are invited to follow a general structure rather than an article-by-article response.

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The structure is as follows: general measures of implementation, d­ efinition of child, general principles, civil rights and freedoms, the family environment and related matters, basic health and welfare services, education/leisure and cultural activities, and special protection measures. The very last element offers coverage of the specific groups of children in difficulties, such as victims of exploitation and abuse. The stepping stones in the process are considered below. Phase 1: Implementation On the implementation issue, Thailand’s initial report began substantively by noting that there was a provision to promote child development under the 1991 Constitution.8 The framework law on children’ s issues at the time was the National Youth Promotion and Coordination Act 1978, defining youth as under 25 and child as under 18. Other main laws included Revolutionary Decrees No. 294 and 132 which were being considered for revision. There was also the National Child and Youth Development Plan linked with the national economic and social development plan, at the time the 7th Plan National Economic and Social Development Plan 1992–6.9 This was also influenced by Thailand’s commitment under the 1991 World Declaration on the Survival, Protection and Development of Children. The report then did some self-reflection by making an initial statement of some of the difficulties facing the relationship with the crc, such as reservations, obsolete laws and weak law enforcement.10 Highlights of the initial report are as follows: 1.

2.

With regard to the definition of the child, there was a whole variety in the range of Thai laws.11 A clear anomaly was that the age of criminal responsibility started at 7 years of age. The minimum age of employment was set at the low threshold of 13. With regard to the reception of crc general principles in Thailand, the report continued as follows: (a) On the issue of non-discrimination, the Thai Constitution 1991 had a provision of equality under the law.12 (b) The best interests principle was reflected in various policies such as the Youth Plan and various laws, including the 1991 law on juvenile justice.13 (c) The right to life, survival and development was responded to as part of the 2001 World Declaration (on children).14 (d) Respect for the child’s views was taken into account in the National Youth Policy of 1973 and 1979. In juvenile justice law, the child’s views were also borne in mind.15

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5. 6.

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8. 9.

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On the issue of civil rights and freedoms, there was a number of concerns, including nationality and birth registration. There were issues of access to registration and gender equality, with various laws more favourable to men, but the situation had improved through the adoption of two nationality laws in 1992 establishing equality between the genders in regard to transfer of Thai nationality to the children. Yet the report admitted some impediments, such as poverty, lack of knowledge and discrimination.16 Concerning protection from media violence, this issue was coming to the fore, underlined by the fact that sometimes victims of violence were not protected by the media, especially when their identity was exposed by the media.17 Re child protection procedures, especially on cases of child abuse, the country had a number of laws on this front, such as the Penal Code, but the loophole was implementation.18 A law was missing on the issue of prohibition of corporal punishment. This was compounded by the cultural acceptance of such practice. This covered both public institutions such as schools and private sphere in the family.19 On the issue of the family environment and related factors, there were concerns as regards children in poverty, children born out of wedlock, children of separated or divorced parents, victims of neglect or violence. At the time, the Penal Code Section 398 could be invoked to some extent to protect children from cruel acts. Various other legal provisions could also counter sexual abuse.20 However, child abuse was on the rise, as indicated by many media. Law reform was only one of the needed entry points to improve child protection. Public education and mobilization were also key.21 There were related concerns regarding street children, children of construction workers, and children in various care facilities. Adoption of children also needed safeguards, and this was provided to some extent by the 1979 Adoption Act which imposed monitoring and follow up on adoptions.22 Children with disabilities needed more attention. While the Disabled Act 1991 was the main law on the subject, there were various challenges beyond the law such as educational access and employment opportunities.23 On the issue of basic health and welfare services, this was a time when the country was trying to expand health care, particularly to rural areas, with some malnutrition prevalent in some areas. The child malnutrition situation was described in the report.24 On another front, hiv/aids was becoming a major challenge, with the spread of the disease among children, particularly through infected mothers. The attitude of the public was also one based on apprehension.25

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10. From the angle of welfare, an innovation was the 1990 Social Security Act which primarily covered persons in an employment situation with tripartite contribution from the Government, employers and employees, with the benefits accruing indirectly to children.26 As a whole, the report appraised the health situation from the angle of needing more access to the poor and rural areas, with more attention to hiv.27 11. The situation of education was described as neither equal nor balanced.28 The educational budget was about 20% of the national budget. Linked with the issue of recreation, there was a need for more out of school activities.29 The cultural dimension also invited more creative activities.30 12. Perhaps the most sensitive area of the report was on special protection measures. The first group covered was children in emergency situation, especially children seeking refuge and children of displaced persons. There was a spillover of these groups into Thailand.31 13. With regard to children in conflict with the law, legal measures to deal with children who committed offences were based at the time upon the Juvenile and Family Procedures Act 1991. Basically, where they existed, the Juvenile courts, staffed with professional judges and “lay” judges, deliberated on the allegations concerning children. There were special provisions dealing with children (more flexibly than in the case of adult offenders), such as the stipulation that the child must be taken to court within 24 hours (as compared with 48 hours in the case of adults) and the stipulation that the case must be finalized in one month. However, at the time, juvenile courts only existed in some but not all provinces. In the provinces without these courts, the child would be taken to ordinary courts and be subjected to adult-based jurisdiction. This was a time also when measures to divert child offenders from detention were limited.32 14. Another group of concern covered by the report was children in situations of exploitation, ranging from child labourers to victims of prostitution and drugs. The child labour presence was worrying and the law, linked with Revolutionary Decree 103 of 1979, set a minimum age which was still too low: at 13.33 15. The sensitive issue of drugs affecting children, particularly their role as couriers, was then highlighted with a call for more prevention and enforcement measures against adults using children in this situation.34 16. A globally discussed issue, child prostitution was then analysed by the initial report, starting with the controversial question of “how many?”35 The responses varied, differing between governmental and non-­governmental statistics.36

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17.

With regard to other forms of sexual abuse, the Penal Code had provisions to protect children, but there were various loopholes needing counteraction, such as the need for more reporting of the crime of rape, trained personnel and budget.37 18. With reference to the issue of sale, trafficking and abduction, the situations included child labour and prostitution, and child trafficking for adoption. There was both domestic and international trafficking. The main law – the 1928 Sale of Women and Girls Act was deficient as it did not cover boys, nor the situation outside Thailand. Victims also at times landed up in immigration detention, having entered Thailand in breach of the immigration law.38 19. Finally, the situation of hilltribe and minority groups was discussed, followed by that of Muslims in southern Thailand. The issues ranged from poverty/development to access to nationality, education, health/welfare and participation.39 Phase 1: Dialogue and Recommendations The Committee had a frank dialogue with the Thai country team which presented the report in 1998. This was preceded by the birth of a democratic Constitution in 1997 paving the way to democratic elections. Highlights from the encounter included the following: 1. 2.

The Committee recognized various positive aspects in the country, such as the presence of new laws, including the 1997 Constitution which guaranteed child rights.40 Yet, there were salient difficulties including:41 – Economic plight – Reservations, despite the withdrawal of reservation to Article 29 (on education) – Failure of the national legal framework to reflect the crc fully – Lax law enforcement and corruption – Limited coordination through the National Youth Bureau – Deficient data, with lack of disaggregation – Absence of independent monitor – Insufficient budget – Limited awareness raising – Low age of criminal responsibility – Limited integration of the basis principles of the crc into the national setting

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– Lack of access to vulnerable groups, limited child participation, and lack of birth registration for all. 3. Although by the time of dialogue, corporal punishment had been outlawed at school, the issue was broader: 21. The Committee notes the State party’s efforts to prohibit the use of corporal punishment in schools. It is concerned, however, that corporal punishment is still practised and that domestic legislation does not prohibits use within the family, the juvenile justice and alternative care systems and generally within the society. In this regard, the Committee recommends that the State party take all appropriate measures, including of a legislative nature, to prohibit corporal punishment within the family, the juvenile justice and alternative care systems and generally within the society. It further suggests that awareness raising campaigns be conducted to ensure that alternative forms of discipline are administered in a manner consistent with the child’s human dignity and in conformity with the Convention, especially Article 28.2.42 4. There was a need to strengthen parental skills and the family environment to tackle child abuse especially in the family system, requiring measures ranging from investigations to support services, and related resources.43 5. The Committee emphasized the need for more breastfeeding as part of reduction of child mortality.44 6. There was a call for more data on adolescent health.45 7. The need for more services for those with disabilities was identified.46 8. The lack of access to school by children in distant areas was raised.47 9. There was unclear response by the State to the issue of unaccompanied minor asylum seekers, interlinked with concern on the detention of asylum seeking children, as well as lack of accession of the country to international refugee instruments.48 10. The high rate of exploitation in labour, prostitution and trafficking needed action, ranging from more prevention to effective law enforcement, awareness raising and cross border cooperation.49 11. On juvenile justice, various practices inconsistent with the crc and needing reform were highlighted, including child sensitive juvenile justice system, action against ill treatment, the need to follow the principle that detention should be a measure of last resort, and the call to follow international guidelines on the subject.50 The recommendations then rounded off by inviting the country to disseminate well the advice of the Committee.

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Phase 2: Implementation The second phase followed with the periodic report submitted in 2004. The report traced various developments and related implementation/follow-up since the initial report in accordance with the reporting structure above as follows: 1.

On the general situation, it noted that information for the report covered the period up to 2000.51 There was a new Constitution in 1997 with a broad range of provisions on human rights, including child protection. Other important new laws included: the National Education Act 1999 promoting a longer period of education; the Labour Protection Act 1998 which raised the age of employment from 13 to 15; the Prevention and Suppression of Prostitution Act 1996 which sought to punish the customers of under 18’s; the Measures in Prevention and Suppression of Trafficking in Women and Children Act 1997 which extended the coverage to protect boys ; the Money Laundering Control Act 1999 which introduced offences in relation to commercial sex and drugs; amendment to the Criminal Procedures No.20 of 1999 which provided new procedures for videotaping victims, as well as multi agency back up. There was also the Boxing Act which imposed the minimum age at 15. Pending laws included a bill on child protection and another to prohibit capital punishment for under-18 s. The Ministry of Education’s 2000 regulations also prohibited caning at school. The country was also in the midst of the 8th National Economic and Social Development Plan which provided for child and youth development 1997–2001.52

There were also new activities and institutions which could help on child rights, such as the Ombudsman and the National Counter Corruption Bureau. The children themselves were also preparing a report to be submitted to the crc Committee.53 2. In regard to general measures of implementation, the report noted ­various seminars to discuss the crc and the reservations. However, it continued by stating that there was instability in neighbouring countries causing outflows into Thailand.54 3. After tracing the evolution of a variety of new laws noted above, it elaborated upon the 8th National Plan which aimed to enhance the potential of children, improve the social environment and develop a more comprehensive administrative system.55 4. The budget was affected by the economic crash of 1997.56 5. Various children’s participation fora had also been organized.57

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6.

With regard to the definition of the child, there was still a variety of definitions depending upon which law. For example, the new national education law advocated education for the child till the age of 16 with 9 years’ compulsory education.58 The old child labour law of 1972 had been replaced by the Labour Protection Act 1998, with a higher minimum age of employment (15). The age of conscription was 21, while the age of criminal responsibility was 7. In regard to the capital punishment issue, the situation was substandard since persons above 17 years old could be subjected to capital punishment.59 There was an anomaly concerning the Boxing Act allowing young people over 15 to participate.60 On the issue of general principles of the crc and their reception at the national level, the 1997 Constitution had a concrete provision on equality and various laws opened the door to Thais and non-Thais without discrimination (such as the National Education Act by which foreigners could also be admitted to Thai schools).61 However, the country did not have a specific anti-discrimination law such as to counter racial discrimination. Meanwhile, the best interests’ principle was the driving force of the new anti prostitution law (1996) seeking to protect under 18’s from exploitation and the new anti-trafficking law covering boys and girls. The new Criminal Procedure law introducing videotape of child victims also reflected the principle.62 On the right to life, survival and development, an example of its realization was the School Lunch Fund 1992 which provided lunch at primary schools.63 Measures, such as counseling, were also introduced against suicide. Respect for the child’s views was reflected by the 1997 Constitution, extending the right to vote persons above 18. The child’s opinions were also taken into account in the juvenile justice system.64 In regard to civil rights and freedoms, with the advent of the new Constitution, various issues dealt with in the previous report re-appeared. With respect to birth, name and nationality, birth registration was covered by the Civil Registration Act 1991. There was an issue concerning registration of the children of displaced persons from other countries, though a registration service was available in the camps. On this issue and ­nationality, while the child of a Thai parent acquired Thai nationality automatically, the situation was challenging for children born in Thailand from illegal immigrant parents and who were in search of a ­nationality.65 ­Incidentally, there was no specific law in Thailand on the issue of preservation of identity.66 The Constitution guaranteed freedom of expression but culturally, it was difficult for children to speak up. Freedom of thought and religion was

7.

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guaranteed by the Constitution, while freedom of association and peaceful assembly was manifested also through the National Plan for Children and Youth Development under the 8th Plan 1997–2001.67 With regard to privacy, in addition to the Constitutional guarantee on this matter, there was also the Official Information Act 1997 which stipulated that personal information could not be used by the State unless consent was obtained from the person in question.68 There was still a limited number of materials for children in regard to access to appropriate information. The situation was hampered by old laws, such as the Printing Act 1941, which constrained freedom of expression.69 With respect to protection from torture and cruel treatment, the report noted new monitors in the form of Ombudsman and the Human Rights Commission, but the problem of child victims was evident.70 On the family environment and alternative care, the Constitution and Youth Plan provided for more measures such as counseling services, but there were impediments, such as family’s lack of understanding for the importance of education, budget constraints, and limited evaluation.71 On parental responsibilities, the State was helping with more child care services.72 With regard to non-separation from the parents, there were cases of concern where the parents were held for criminal behaviour.73 The issue of illicit transfer was also linked with trafficking.74 Maintenance of the child was also being promoted by the 1991 Juvenile Courts Act 297, while for children deprived of the family environment, there was the issue of how to provide alternative care.75 In regard to adoption, the country was preparing to become a party to the Hague Convention on the Protection of Children and Cooperation in respect of inter country adoption. On the issue of periodic review of placement, the report referred particularly to children in welfare home and in the case of child offenders, in child and youth observation centres, noting lack of funding on the issue.76 With regard to action against abuse and neglect, including recovery and reintegration, various steps were now being taken including helplines and centres, trained helpers, and child friendly procedures.77 On the issue of health and welfare, the Constitution 1997 provided guidance on more services.78 The Ministry of Labour had also issued regulations to help persons with disabilities, establishing a fund for this ­purpose. The Youth Plan guided actions to access children and the infant mortality rate and maternal mortality rates had declined.79 azt was also being given to pregnant mothers to reduce transmission to babies. Child immunization had also led to decrease in deaths for several diseases.80

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16. In regard to living standards, there were various indicators under the 8th Plan, but implementation was not universal.81 This was compounded by ineffective budgetary use. 17. On the issue of education and related activities, there were constructive developments, now extending compulsory education to 9 years.82 18. There were efforts to increase the budget, to expand non-formal and informal education, to overcome illiteracy, to improve enrolment and reduce drop out, and to ensure that school discipline conforms to the Convention.83 With regard to fulfilling the aims of education, one of the innovations was to expand distance learning. Quality personnel was essential. More facilities were also needed on rest and recreation.84 19. On the sensitive issue of special protection measures, the report delved into these groups: children and refuge, children in armed conflicts, children involved with the juvenile justice system, children in economic exploitation, children in drugs, children and sexual exploitation and abuse, sale/trafficking and abduction of children, children in other forms of exploitation, children in minority or culturally diverse groups.85 With regard to the first group, there was a continuing presence of asylum seekers in Thailand, particularly persons displaced from Myanmar.86 The report then stated that as Thailand did not have any armed conflicts, there were no children in such situation.87 20. With regard to juvenile justice, there was a rise of children put on trial from 10,661 in 1993 to 30,669 in 1997.88 While there was an increase of juvenile courts in the country, this was not the case in all provinces. The amended Criminal Code introduced more child friendly procedures through videotaping. The juvenile system based on the 1991 law was that those arrested have to be taken to court in 24 hours and charges should be filed within 30 days, quicker than the system for adults.89 21. There remained the issue of capital punishment where the local law was in conflict with the crc.90 22. With regard to the child labour problem, in addition to the 1997 Constitution, there was the new Labour Protection Act which raised the minimum age of employment to 15, and this was complemented by extension of compulsory education to nine years (from six years), with provisions for rest and protection against sexual harassment and more inter-country cooperation for cross border cases.91 23. Various activities, such as smelting, work with hazardous chemicals, work with electric saws and underground work, were also singled out as hazardous and children under 18 were prohibited from being involved in them.92 Monitoring was carried by the group of inspectors from the

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27.

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Ministry of Labour. At the time, Thailand was not yet a party to the main International Labour Convention on the subject: Convention No. 138.93 The issue of children in drugs had become more serious.94 The law protecting children included: “Revolutionary Announcement No. 132 on inappropriate behaviour of students with regard to alcohol, tobacco and drug use; The Tobacco Control Act of 1972, prohibiting that the sale of tobacco to persons under 18 years old.”95 The country was also a party to some international treaties such as the Single Convention on N ­ arcotic Drugs 1961, the Convention on Psychotropic Substances 1971,and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988.96 Yet some of the key issues included drug trafficking, at times with official collusion, and the need for more community help in countering the phenomenon.97 With regard to children in sexual exploitation and abuse, the data differed between agencies.98 The laws applying were: (a) the Prevention and Suppression of Prostitution Act of 1996; (b) the Measures in Prevention and Suppression of Trafficking in Women and Children of 1997; (c) the Penal Code Amendment Act (No. 14) of 1997 and the Criminal Procedure Code Amendment Act (No. 20) of 1999; and (d) the Money Laundering Control Act of 1999. There was also a national plan of action on preventing and combating commercial sexual exploitation which underlined measures for prevention, suppression of crimes, and assistance and protection of victims(such as hotlines), with stronger national coordination.99 On the sale/trafficking/abduction issue, there was increasing cooperation in the Mekong region to counter the phenomenon. The various laws above applied, particularly the Measures in the Prevention and Suppression of Trafficking in Women and Children Act 1997.100 A new law on child protection was in the process of being drafted which would help to tackle other forms of child abuse. Finally on the issue of minorities and culturally diverse groups, the report dealt with the hill tribe groups, tracing recent developments such as provision of more education and health facilities, as well as increased grant of Thai citizenship. The link with conservation of nature was also borne in mind, and the 8th Plan singled these groups out for special attention.101

Phase 2: Dialogue and Recommendations By the time of the dialogue in 2006 with the crc Committee, some new developments had taken place. Perhaps the most prominent development was the adoption of the Child Protection Act 2003 which discarded the previous

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­revolutionary decrees and put into place a comprehensive parliamentary statute. The Act follows the crc closely and integrates into the law the notions of non-discrimination and best interests. In addition to the setting up of a national child protection committee, there are provincial child protection committees linked up with watchdogs on child protection at the local level. The law sets up a fund on the issue and installs a series of measures to help children at risk, as well as a variety of shelters run by the Ministry of Social Development and Human Security. Thus in the dialogue, the Committee recognized the innovations and dealt with other challenges as follows: 1. 2.

3.

4. 5. 6. 7.

The Committee commended the State party for new laws such as the Child Protection Act and the Compulsory Education Act.102 The Committee also welcomed the country’s ratification of international instruments, some of which took place after the report was finalized, such as 1999 ilo Convention No. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour on 16 February 2001; 1980 Hague Convention No. 28 on the Civil Aspects of International Child Abduction on 14 August 2002; 1965 International Convention on the Elimination of All Forms of Racial Discrimination on 28 January 2003; 1993 Hague Convention No. 33 on Protection of Children and Cooperation in Respect of Inter-country Adoption on 29 April 2004; and 1973 ilo Convention No. 138 concerning Minimum Age for Admission to Employment on 11 May 2004.103 It then addressed key difficulties on the implementation of child rights in the country, with initial attention to the Tsunami disaster in the country in 2004. On the issue of general implementation, the Committee said that some of its previous recommendations had not yet been attended to, such as on the minimum age of criminal responsibility, birth registration, statelessness and asylum.104 It called for withdrawal of the two remaining reservations: Articles 7 and 22.105 It recommended strengthening of coordination between the National Youth Bureau and the administration at different levels.106 It called for the National Strategy and Plan of Action 2005–2015 to implement the outcome document entitled “ A World Fit for Children” adopted by the 2002 un General Assembly Special Session on children.107 In welcoming the establishment of the Ombudsman, Human Rights Commission and resource allocation, it advocated more focus on children, in addition to more systematic data collection.108

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11. 12. 13. 14. 15. 16.

17. 18. 19. 20. 21.

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It highlighted the need for more action against discrimination, especially in regard to Muslim, immigrant and refugee children.109 On civil and political rights, it underlined the need for action to tackle the issue of birth registration, with accessible services such as mobile services and covering not only Thais but also migrant workers.110 On the issue of nationality, the Committee not only called for withdrawal of reservations to Article 7 and 22 but also urged that all stateless persons born in Thailand and living under its jurisdiction should acquire a nationality, including the possibility of acquiring Thai nationality.111 While recognizing that corporal punishment in school was prohibited, it called for prohibition of such practice in the home and all alternative care settings.112 In regard to alternative care, there was the need for standards and independent monitoring.113 In regard to violence, especially domestic violence the Committee urged review of the law, timely investigations, more social services, law enforcement, public education and data collection.114 On the question of children in prison, their best interests should prevail and review of alternative care should be explored where children were separated from mothers who were in prison.115 With respect to children and disabilities, there was a call for a comprehensive national policy as well as to improve access to schools and services.116 On the issue of health, there was emphasis on equal access to quality health services; prenatal care; breastfeeding; and adolescent health, including on drug and alcohol prevention and rehabilitation; hiv related services.117 In relation to standard of living, there was a need for poverty reduction, access to education, health and shelter, and funds for families in poverty.118 On education, the Committee urged more pre-school, access by indigenous children, and vocational training.119 In regard to special protection measures, children of asylum seekers and refugees, there was emphasis on their security and non-refoulement as well as advocacy of accession to the refugee instruments.120 Particular attention paid to migrant children underlined the call against arbitrary arrest, non-refoulement, and the need to access basic services.121 On the issue of child labour, the Committee exhorted effective implementation of the various laws and to improved access to education.122

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22. On the issue of sale, trafficking and sexual exploitation, the various needed measures included cross border cooperation, investigation of the perpetrators, public education and victim protection.123 23. A number of details arose on the juvenile justice issue including the need to raise the minimum age of criminal responsibility, family case conferencing, measures to divert children from the criminal justice system and use alternative methods, only with detention as a measure of last resort.124 24. On the minorities and indigenous issue, there was emphasis on cultural identity and birth registration to overcome statelessness.125 Phase 3: Implementation The third phase of the country’s engagement with the Child Rights Committee was based on the country’s combined third and fourth reports covering the period 2006–2009. Significantly, a new Constitution came into existence in 2007 after a coup in 2006. The Child and Youth Development Act was passed in 2007 to complement the Child Protection Act of 2003. The former is more related to policy on child and youth development and fosters child/youth participation by setting up youth councils all over the country to give advice on youth development. At the apex is a national committee on child and youth development. The Domestic Violence Act came into existence in 2007 and this was further advanced by the Anti-trafficking Act 2008. There was also a new law on computer crimes in 2007. The new Constitution also empowered the Human Rights Commission to take cases directly to court. A new national youth policy embodying these priorities and carrying through the un’s World Fit for Children Agenda was in place: The National Agenda for Children and Adolescents in 2008, announced by the Prime Minister and including five main issues, i.e. creative activities, family strengthening, educational media, child friendly city and early childhood education.126 The country also ratified 2 Protocols (on sale of children and on children in armed conflict) in 2005 and this meant that the reports under these Protocols would be submitted at the same time as the report under the crc in this phase. By the time the country team met the crc Committee to report orally in 2012, reservation to Article 7 had been withdrawn in 2010, leaving only the reservation to Article 22.127 The essence of this latest report is as follows: 1.

With regard to implementation of the general principles of the Convention, the country’s report highlighted greater child and youth participation under the Child and Youth Development Act and reforms in regard to the judicial process.128

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New laws were adopted to facilitate birth registration and nationality. The Birth Registration Act and Nationality Act of 2008 opened the door to register all births in Thailand, irrespective of the status of the child and parents. The latter law also restored Thai nationality to those who had seen their citizenship revoked by an earlier Thai nationality law, as well as to confer Thai nationality particularly on those born in Thailand principally before 1992.129 3. The report itself noted that on corporal punishment, despite the passage of the Domestic Violence Act, there was still no prohibition of such punishment in the family system.130 And on the sexual abuse and trafficking situation, the need for more severe penalties under criminal law was being explored.131 4. With regard to children of female inmates, a new law was passed (before the Thai team appeared before the crc Committee), commuting the death sentence imposed on female inmates to life imprisonment if the child survived for more than three years after birth.132 5. On health issues, a variety of new laws broadened medical coverage and spread resources to help children with disabilities more effectively. These included the National Health Act 2007 and the 2 laws on the rights of persons with disabilities in 2007 and 2008.133 6. On children with disabilities, the country became a party the crpd in 2008 and there were now specific laws to prohibit discrimination on this front as well as to provide more assistance to persons with disabilities, including children.134 7. On health services, the intention was to broaden the services such as pre and post natal care, adolescent health, teenage pregnancies and hiv.135 8. With regard to education, the aim would be to extend compulsory education to 15 years, with more pre school and vocational training. The report noted difficulties such as quality of the teaching and shortage of teachers.136 9. On special protection measures, the report noted positive developments, such as more comprehensive birth registration.137 10. On child asylum seekers, measures such as record keeping, setting up of camps, action against human trafficking, international cooperation and resettlement opportunities, were being adopted.138 11. With regard to child migrants, the country was implementing a policy to regularize status.139 12. With regard to the child labour issue, there was an issue concerning the influx of foreign children. The good news was that the country was signing up to ilo treaties on the subject.140

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13. On the sexual exploitation of children and trafficking in children, the country was cooperating more with neighbours such as through mous.141 14. With reference to Juvenile Justice, by the time of the oral dialogue, the new Juvenile Courts and Procedure Act had come into being in 2010, with more channels for diverting children from detention and from criminal proceedings.142 15. With regard to children of minorities and indigenous, a major worry was the violence in Southern Thailand and this is linked with Thailand’s report under the Protocol dealt with below.143 Phase 3: Dialogue and Recommendations The dialogue with the Committee took place in 2012, by which time several developments had taken place as reflected below: 1.

2.

3. 4. 5.

The Committee welcomed new laws and plans such as the Child Adoption Act (No.3) of 2010; the Juvenile Family Court and its Procedure Act of 2010; the Anti-Trafficking in Persons Act of 2008; the Civil Registration Act of 2008; the Domestic Violence Victim Protection Act of 2007; the Persons with Disabilities’ Quality of Life Promotion Act of 2007; The National Child and Youth Development Promotion Act of 2007. It appreciated ratification of the following: Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict on 27 February 2006; Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography on 11 January 2006; Convention on the Rights of Persons with Disabilities on 29 July 2008; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 2 October 2007.144 It called for more effective follow up measures, such as on data collection, non-discrimination, nationality, protection of privacy, corporal punishment in the home, alternative care, children in prison with their mothers, adolescent health, refugee and asylum-seeking children and child labour/migration and juvenile justice.145 It called for withdrawal of reservation to Article 22 and for improved coordination among ministries as well as evaluation of programmes.146 It called for more accessible complaints mechanism, such as special unit to receive complaints.147 It recommended more budget for children’s issues and a tracking system for follow up.148

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8. 9.

10.

11. 12. 13. 14.

15. 16. 17. 18. 19. 20. 21.

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On corruption, there was a call for more action to detect, investigate and prosecute cases.149 It invited the country to examine the relationship between business and child rights, following the un orientations on the issue including the need for the State to protect child rights, the need for the business community to respect that framework, and the need for both to remedy transgressions through a variety of measures including laws and Codes of Conduct, and impact assessment and preventive action.150 With regard to the definition of the child, it recommended raising the minimum age of marriage to 18.151 On implementation of the basic principles, it urged protection of all children under the country’s jurisdiction and integration of the best interests’ principle and child participation into decisions affecting them in the family, school and community, including through setting up child and youth councils.152 It invited the country to tackle the issue of statelessness and to ratify the 1954 Convention relating to the Status of Stateless Persons and the Optional Protocol, and the 1961 Convention on the Reduction of Statelessness.153 It called for universal birth registration.154 It invited media to respect the child’s right to privacy.155 It underlined the need for action against violence including to forbid corporal punishment in the home.156 In regard to alternative care, it called for action from the country to assess the situation of children in institutions and set clear standards for such institutions as related foster case, together with reinforcing the family system to prevent the institutionalization of children.157 While welcoming the Adoption Act 2010, it recommended more monitoring.158 On migration, it called for more family reunification.159 On children with disabilities, it recommended inclusive education.160 On nutrition, there was emphasis on breastfeeding.161 It called for more measures on adolescent health, such as education and access to services, especially to prevent the spread of hiv, as well to counter tobacco use.162 On the poverty issue, it recommended that the country should opt for universal child allowance scheme.163 In regard to education, the advice was to promote more pre-school, multilingualism and improved quality.164

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22. In respect of asylum seekers, the issue raised was related to protection, particularly to screen case, desist from detaining them, and respond to their basic needs.165 23. On child migrants, the advice was to afford more protection from dangerous work.166 24. With regard to child labour, the informal sector was raised for reflection and response in terms of needed decent work.167 25. On sexual abuse and exploitation, a variety of actions was advocated, ­including awareness raising, early detection and prevention, reduction of time for investigation of cases, research on the root causes.168 26. Relating to juvenile justice, a range of concerns was underlined, particularly to adjust the local setting to various international guidelines such as to raise the minimum age of criminal responsibility to 12, deprivation of liberty as a last resort, alternative measures such as diversion, and social reintegration.169 27. Child victims and witnesses of crimes deserved more attention.170 28. On minority and indigenous people, the needed actions included more economic opportunities, a variety of supports, and protection from violence.171 29. The final recommendation was that the next combined report would be due by 2017. The Committee also encouraged accession to other human rights treaties.172 Follow up measures are inevitably linked with the issues encapsulated below. Key Challenges: crc Law and Policy On analysis, the country does not lack laws for child assistance and protection to help implement the crc. However, there remains the issue of lax law and policy enforcement on some fronts, as well as needed coordination between different agencies. Interestingly, the issue of corruption is raised overtly by the Committee, as above. This invites a structural approach which cannot be remedied by the mere introduction of a new law or policy. The approach necessitates the formation of quality law enforcers, adequate incentives and sanctions, together with monitoring and civil society participation. Reception and Reservations The implication from the Committee’s recommendations is to integrate the basic principles of the Convention more effectively into the system. This is

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­particularly pertinent to non-Thai children. The call to withdraw the one remaining reservation – re Article 22 – is interlinked with this. Protection The issue of protection is high priority, in the presence of the Child Protection Act. It has ramifications for several groups of children, such as victims of prostitution and other forms of abuse and violence. Interestingly, there are now discussions to reform the Act. Participation Despite the call for child participation, the cultural bias of not hearing children remains on some fronts. There are opportunities for more space accorded by various youth councils set up by the Child and Youth Development Act, even in a consultative form. Enforcement and Case Work As victims, children and their representatives have to resort to ordinary courts. This is usually the case where there are sexual or other abuses committed against children. As for children in conflict with the law, there is a special ­juvenile justice system with juvenile courts and specially trained judges throughout the whole country. On a welcome note, the juvenile justice law of 2010 enables the latter to use more diversion methods to channel children away from detention. Judges are acting more a managers to find other solutions rather than incarceration.173 The need for alternative mechanisms to help children claim their rights is also evident. The work of the Human Rights Commission has filled in this role to some extent. For instance, the Commission designates one of its Commissioners to deal specifically with child related issues, takes complaints on violations of child rights and conducts friendly visits to closed institutions, including juvenile facilities.174 On the issue of caning at school, the Ministry of Education has at times stepped in to dismiss teachers who fall foul of the law forbidding this practice. Neglect/Abuse/Exploitation/Violence This issue is raised prominently by the crc Committee and is a major issue locally. To be fair, some situations have improved, e.g. decline of Thai children in child sexual exploitation and decline of child labour due to the positive impact of their access to school and prevention of their falling into the labour market at too young age. However, the issue of intra-family violence remains sensitive,

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and corporal punishment in this context is not yet prohibited, although egregious situations may fall under the general Criminal Code and or the domestic violence law. Juvenile Justice This is an area where the new Thai law of 2010 offers opportunities to follow through international standards. There are some anomalies, however, such as the situation in Southern Thailand where there is continuing violence and children may at times be held and tried under the emergency legislation, rather than by juvenile courts under the ordinary system. Also the minimum age of criminal responsibility is still too low: set at 10 years, as compared with the 12 year minimum age espoused by the crc Committee. Groups of Concern A number of different groups of children deserve special attention. These include non-nationals, asylum seekers, child migrant workers and the children of migrant workers, as well as those other groups referred to above. The particular situation of children faced with sale, prostitution and pornography and in situations of violence are dealt with in more detail in regard to two of the Protocols below. ii The Protocols to the crc As noted earlier, there are now three Protocols attached to the crc. The study will glance at the Protocol dealing with sale of children, child prostitution and child pornography, then the Protocol on children in armed conflicts, followed by the most recent Protocol on communications in relation to violations. Protocol on Sale of Children, Child Prostitution and Child Pornography : Reporting Process The value added of this Protocol is that it protects children under 18 absolutely from these phenomena, irrespective of consent.175 The term “sale” covers many forms of transfer including in relation to sex, debt bondage, labour, trafficking, adoption and organ sale. The term “child prostitution” covers sexual abuse for remuneration or in kind, while the term “child pornography” covers materials and other means using children for sexual gratification.176 In regard to the latter, there is a slight ambivalence as to whether the mere possession of child pornography should be criminalized; the Protocol covers possession with a view to distribution.177 Meanwhile, there lingers the issue of computer generated images and whether those based on the imagination should be illegal. The Protocol calls for both criminalization, prevention, child protection and remediation. It

(A)

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opens the door to cross border cooperation such as through extradition. The crc Committee has also indicated that it does not agree with the double criminality provision of some national laws, whereby prosecution in cross country cases will only take place if the act is illegal in both the destination country and the country of origin of the abuser.178 The Protocol has been complemented by various global conferences on child sexual exploitation as well as other treaties, such as under the ilo.179 Under the Protocol, the member country is obliged to prepare a report specifically on implementation of the Protocol after the ratification. After this process, future reporting will be subsumed under the periodic reports under the crc. The discussion below thus covers Thailand’s specific report after ratifying the Protocol. The report was submitted in 2009 and discussed by the crc Committee in 2012. Implementation The structure of the national report followed this pattern: general situation, definition legal status, mechanisms, dissemination and training, preparation, budget; prohibition, including legislation; criminal procedure including jurisdiction and court proceedings; victim protection; prevention measures; international assistance and cooperation, and related matters. The report underlined the following: 1.

2.

3.

4.

With regard to the general situation, there was acknowledgement that the problem was becoming more transfrontier.180 And the problem of child pornography was becoming more extensive and complicated because of the internet.181 Various agencies were involved in the implementation process; these included the National Youth Commission which has a sub-committee to combat the trafficking of children and women, the national Child Protection Committee and the National Human Rights Commission.182 There were various laws and policies on the issues under the Protocol, including the Penal Code, Criminal Procedure Code, Prevention and Suppression of Prostitution Act 1996, Money Laundering Control Act 1999, Child Protection Act 2003, Anti-trafficking in Persons Act 2008. On the issue of child pornography, there were the Computer Crime Control Act 2007, and Publishing Registration Act 2007. There was also the Adoption Act 1979.183 With regard to Criminal Procedure, there were the Penal Code and Criminal Procedure Code. The latter had been amended to introduce interdisciplinary teams to help children in such situations, with the presence of child psychologist and social worker, and with special facilities to record testimonies and prevent re-traumatization.184

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There was also the Extradition Act 2008 with many bilateral arrangements. Seizure of assets was possible under the Money Laundering Control Act.185 6. On protection of victims, the report noted that there were various procedures to help victims of trafficking, such as collaboration between government and non-government agencies. There was also a national policy and plan of action on the Prevention and Resolution of Domestic and Cross-border trafficking in Children 2003–10. An Operation Centre on the trafficking issue was set up in 1995 to provide assistance and collect data.186 Various mous had been concluded with neighbouring countries such a Cambodia, Laos and Myanmar to ensure safe return of cross border victims.187 There were also national and regional mous on the matter.188 7. In regard to victim assistance, various measures were advocated, including shelter, rescue, screening, access to justice and safe return.189 8. On the child labour issue, the main law was the Labour Protection Act 1998 under which the minimum age of work was 15, while it was forbidden for those between 15 and 18 to work in hazardous work.190 Various hotlines had been set up to help children in need. 9. On the prevention issue, there was emphasis on education, particularly free basic education of at least 12 years.191 On tourism, there were measures against sex tourism such as police guidelines to report suspicious behaviour.192 On child labour, there was a public education programme and programmes to reinforce families and communities on the issue.193 In regard to child pornography, there was a national Telecommunications Commission to monitor the situation, coupled with Computer Crimes Control Act. The Ministry of Culture had introduced a filtering system as well as a ratings system for films.194 10. On international cooperation, there was cooperation with such countries as China, Vietnam, such as the Mekong Project to combat trafficking in children and women and the Coordinated Mekong Ministerial Initiative against Trafficking (commit).195 11. On law enforcement, the report admitted difficulties such as poverty, lack of action by agencies, and materials from abroad through the internet, while advocating the need to counter corruption and allocate adequate resources.196 Dialogue and Recommendations The discussion of the report took place with the crc Committee at the beginning of 2012, and the Committee made these observations:

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1.

It welcomed several developments such as the new anti-trafficking law and various plans of action on child protection, as well as accession to more treaties.197 2. It called for more data disaggregated.198 3. It urged harmonization of the law with the Protocol and a comprehensive programme of implementation.199 4. It called for more coordination.200 5. On preventive action, it called for more action against child sex tourism, including local adoption of international Code of Conduct on the issue.201 6. On the prohibition issue, it called for the country to criminalize the sale of children, as well as revise the law on child pornography.202 7. On the jurisdiction issue, it advised that the country should have extraterritorial criminal laws and avoid double criminality provisions.203 8. On child protection, it urged early identification of the victims and child friendly procedures.204 9. On recovery and reintegration issues, it called for action to access child victims, provide assistance and compensation, together with more intersectoral cooperation.205 10. On the need for helplines, it advised that there should be a single national helpline.206 (B) Protocol on Children in Armed Conflict: Reporting Process The thrust of this Protocol is to protect children from being involved in armed conflicts, with particular stipulations on child soldiers.207 There is the prohibition against conscription of persons under 18 into the armed forces. For voluntary recruitment, while there is no absolute prohibition in regard to persons over 15 years of age, the State party undertakes to raise the minimum age upwards towards 18. There is an obligation to take all feasible measures to prohibit children under 18 being involved in hostilities, and measures are to be taken to ensure compliance by non-State armed groups. Implementation Thailand’s report, submitted in 2009, and then discussed by the Committee in 2012, followed this structure: general situation, legal status, mechanisms, dissemination and training, report preparation, general principles, legislative measures, voluntary recruitment, schools under the armed forces, prevention, education, public health, birth certificate, border security, cooperation.208 The contents included the following:

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1. 2.

Child protection was reflected in the 2007 Constitution.209 The main agencies on this matter were the National Youth Commission and the National Child Protection Committee, and the Human Rights Commission.210 There was no conscription for under 18’s. There was military registration at the age of 18 while males were not to be called for compulsory military service till 21. Non-governmental militias were prohibited. The main law on this was the Military Service Act 1954.211 On voluntary recruitment, the report stated the person had to be between 18–20 to be active military personnel.212 Access to military schools was possible before the age of 18.213 On prevention, the law prohibited recruitment of under 18 s and there was no policy to allow individuals or groups to have operational bases in Thailand. Preventive measures included education, health services, birth certificate, and border security.214 The country cooperated with others on the issue and had ratified many treaties on armed conflicts.215

3.

4. 5. 6.

7.

Dialogue and Recommendations In 2011, the Committee sent a list of issues on this Protocol for the country to respond to, prior to coming to Geneva for the oral dialogue.216 In particular, the Committee was interested in the issues of whether the national law criminalized the use of child soldiers, whether village militia were using children directly or in directly, and what kind of military training in military schools before the age of 18, and the situation in the South. The country provided these responses. 1. 2. 3.

4.

The country underlined that the situation in the South was not an armed conflict. The violence there was of a limited nature.217 The main laws on the issue were the Child Protection Act 2003 and various provisions of the Criminal Code protecting children from work detrimental to their development and violence.218 With regard to village militia, the reply claimed that the use of children in such situation was prohibited and that this was supplemented by ministerial regulation and monitoring against use of children under 18 thereunder.219 With regard to various military schools which admitted persons from the age of 12 upwards, the response was that there was training in a variety of matters, such as military communication, without military combat.220

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With regard to children in the South, the reply claimed that if they were to be detained, the criminal law and the juvenile justice law were applied.221 The reply asserted that asylum-seekers were being protected.222 It stated that various laws controlled the use and export of weapons.223

In the dialogue with the Committee, the latter made the following concluding observations: 1. 2. 3. 4.

5. 6.

7. 8.

9.

It welcomed the use of 18 as the age of military registration.224 It called for fuller integration of the Protocol into the national setting as well as improved coordination between the Child and Youth Commission and the Child Protection Committee.225 It asked more comprehensive data collection.226 On voluntary recruitment, it recommended greater clarity in law and more oversight to prevent and prohibit involvement of children with the Chor Ror Bor (village militia), including where they were taking part informally in functions.227 On military schools, the Committee advised that no military training, particularly use of firearms, should be offered to persons under 18.228 It called for express criminalization of recruitment of under 18s by armed forces or other actors, such as village militia and non-State armed groups, indicating that the 1956 Criminal Code and Child Protection Act 2013 were inadequate.229 It advised that the law should cover universal jurisdiction and that the country should ratify the Rome Statute of the International Criminal Court.230 On protection matters, it called for identification mechanism for child asylum-seekers, psychological help for ex child soldiers, prevention of recruitment from the Myanmar side of the border, and prohibition of forced return.231 On children under emergency legislation, it called for the country to review its security laws and ensure that children should be dealt with in the juvenile justice system.232

(C) Protocol on Communications As noted earlier, Thailand was the first country to ratify this Protocol.233 Basically, the Protocol opens the door to a child or his/her representative to send communications of alleged violations to the Committee where the local remedies have been exhausted. There is no requirement to submit a separate national report under this Protocol (unlike the two earlier Protocols). While under the

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Protocol, a member State can state that it does not confer upon the Committee automatically the right to investigate gross human rights violations, the country desisted from making such declaration. However, the country did not make a declaration to allow other states to complain against the country before the Committee. The current discussion locally is how to facilitate children’s access to the Committee and the parameters between state facilitation and the independence of action on the part of children and their representatives. Key Challenges: The Protocols Definition and Scope Looking back to the three Protocols, the issue of definition and scope arises for some of the Protocols. In particular, in regard to sale of children, there is still no clear definition or prohibition at the national level on this issue. Much of the State report delved into the issue of trafficking, but the issue of sale is broader. With regard to the Protocol on children in armed conflicts, the criminal law needs to be more explicit to prohibit both direct and indirect recruitment, covering the acts of non only state but also non-state actors. There is also a need for universal jurisdiction on the issue. Demand and Supply Particularly on the issue of sale and exploitation, there is a need to tackle not only the supply of victims but also the demand factor. Likewise the supply of child soldiers. The demand factor is linked with customers as well as intermediaries. National and Transnational Nature This is pertinent to all the Protocols, as well as the Convention. In regard to the Protocol on sale, there is the advocacy of extraterritorial laws against sexual exploitation, while the Protocol on children in armed conflicts covers many aspects of cross-border operations and the need to protect children from the elements operating there. Violence and Conflict Various situations of violence and conflict are covered by the Protocols.234 In relation to sale and exploitation, sexual violence needs to be tackled together with other forms of violence. In regard to the Protocol on armed conflicts, it is interesting that the situation in the South is not classified as an armed conflict by the government. The coverage provided by the Protocol is thus to advocate preventive measures even in a situation of violence which is not tantamount to an armed conflict.

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Law/Policy/Practice Many laws and policies already cover the above situations. Some loopholes are visible: the need for a clear law prohibiting sale of children, the need for a law to prohibit possession of child pornography even where there is no distribution, and the need for express criminalization of recruitment of children in regard to both state and non-state actors. It can be noted that in the middle of 2015, an amendment to the Criminal Code was passed to prohibit possession of child pornography (covering also situations where no distribution is involved). The new law also covers computer generated child pornography and ­pornographic acts committed in the presence of children – which is also encompassed as child pornography.235 There is also a converse – negative – implication of implementation of some laws which invites reflection; for instance, there should be no use of national laws, such as the immigration law, to push asylum-seekers out of the country and into dangers. Enforcement and Case Work Interestingly, the national report for the Protocol on Sale of Children cites ­several cases of law enforcement both locally and transnationally on child protection, e.g. the use of laws to overcome paedophiles from other countries abusing children in Thailand and then escaping back to the country of origin. Law enforcement remains a continual challenge as a systemic issue.236 Prevention, Protection, Participation and Remedy Actions on this front are highlighted in law and practice by the various Protocols and the Convention. On the positive front, Thailand now provides more interdisciplinary teams to help victims. Preventive measures are seen to some extent by greater access to education and the presence of laws setting standards. In principle, child and youth participation is underlined, as seen by the country’s quick ratification of the most recent Protocol. Yet, there are cultural impediments facing child participation and the need to move beyond tokenism. It will also be interesting to see, in future, access to the crc Committee in relation to this recent Protocol where there is no national remedy for a violation. Mechanisms/Arrangements While various mechanisms deal with children under the Protocols, clearly the need for inter-sectoral coordination is essential. Also the Committee advocates a strong unit to receive complaints from children, while the Human Rights Commission may be able to fill this role to some extent. Cross border mechan­ isms exist to some extent through the various mous on trafficking, and this can be extended to other issues.

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Cooperation/ Dissemination/Follow up While there already exist various cooperative modalities both internally and transnationally, given the increasingly cross border nature of exploitation and conflict, there is room for more cooperation and facilitation, such as to ease the possibility of extradition by not demanding double criminality. Quick procedures to take evidence from children and to avoid re-traumatization are also recommended, particularly in exploitation cases. Dissemination of information, training of personnel and follow up are all important to nurture a mindset that helps to protect the child and that invites transparency and accountability, countering impunity and offering remediation.

1 The Convention has 54 Articles. The country is a party to its three Protocols. It also accepted the inquiry procedure under crc Article 13. For text and updates, see www.ohchr.org. 2 See further for literature: G. Van Beuren, (ed.), International Documents on Children (Dordrecht: Martinus Nijhoff Publishers, 1993); G. Van Beuren, International Law on the Rights of the Child (Dordrecht: Martinus Nijhoff Publishers, 1998). 3 www.ohchr.org, supra note 1. 4 Ministry of Social Development and Human Security, Convention on the Rights of the Child/ Protocols, (Bangkok: Ministry of Social Development and Human Security, no date). 5 Initial Report: Thailand, un Doc. CRC/C/11/Add.13 (September 1996); Concluding Observations, un Doc.CRC/C/15/Add.97 (October 1998). 6 Second Report: Thailand, un Doc.CRC/C/83/Add.15 (May 2005); Concluding Observations, un Doc. CRC/C/THA/CO2 (March 2006). Working Team for Child Rights and Children’s Issues, Children’s Report on Child Rights and Children’s Issues (Bangkok: unicef, 2003). 7 Third Report: Thailand, un Doc.CRC/C/THA/3-4(September 2011); Concluding Observations, un Doc. CRC/C/THA/CP/3-4 (February 2012). Report for Protocol on Children in Armed Conflicts: un Doc. CRC/C/OPA/THA/1(July 2011); Concluding Observations: un Doc.CRC/C/OPAC/THA/CO/1 (February 2012); Report for Protocol On Sale of Children: un Doc. CRC/C/OPSC/THA/1 (July 2011); Concluding Observations: un Doc. CRC/C/OPSC/THA/CO/1 (February 2012). 8 Initial Report, supra note 5, para. 36. 9 Ibid. This singled out 7 areas of emphasis: (a) expanding urgently the preparation of Preschool children (0–5); (b) stepping up the training of out-of-school youths (14–25); (c) extending compulsory basic education to nine years for in school children (6–14); (d) stressing the development of morals, ethics, values and the democratic way of life among children and youth; (e) stepping up the prevention, surveillance and treatment of aids among children and youth, especially those who have full-blown aids, have AIDS-related symptoms or are hiv positive; (f) stepping up the prevention, protection, correction, rehabilitation and development of children and youth in especially difficult circumstances; and (g) promoting gifted or talented children. para. 41.

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Ibid. Problems 45. Thailand has made reservations on certain articles of the Convention relating to ­national security. Because of this, some provisions of the Convention have not been implemented such as those pertaining to nationality and the status of refugee children. 46. The revision of many obsolete laws to bring them into line with today’s changing society is a complex process. Any amendment to a law or the drafting of a new law requires a long period of time, at times long enough to allow the situation to deteriorate even further. Most laws are, however, about punishment, not prevention. 47. Enforcement of existing laws is often subjected to discrimination by the officials in charge. This means that all too often the laws are not implemented according to their spirit. Implementation of the Convention leaves much to be desired due to lax law enforcement on several fronts, such as in the area of child exploitation. 48. Thailand’s Government and administrative system is a highly centralized one. Local officials do not have the decision-making power needed to solve problems and are obliged to wait for approval and orders from Bangkok. Problem-solving is often too slow and does not respond to local needs. The problem of centralization is also evident in the process of budget allocation. 49. The growing importance of the industrial and service sectors, both of which are experiencing considerably faster growth than the country’s traditional agricultural sector, has caused rural people to migrate to the cities and industrial zones. Though it may represent a chance for employment, the migration brings with it numerous problems: housing shortages in cities resulting in more crowded slums which in turn result in problems of personal safety, pollution and inadequate public utilities and a shortage of basic amenities. 50. There is a large group of children trafficked into Thailand from neighbouring countries who are classified by Thai law as illegal immigrants. Regrettably, they do not enjoy rights other children take for granted. This includes access to education, career development and adequate access to legal protection. These children are all too often exploited as prostitutes and child labourers. The main reason for illegal immigration is poverty an instability in Thailand’s neighbouring countries although a certain number of peoples are duped by criminal gangs into entering the country. 51. Owing to the fact that about 23 per cent of the population still lives in relative poverty, there is a correspondingly large number of children also living in poverty, or with poor families. Poverty is a cause of many problems for children such as crime, drug addiction, vagrancy, child prostitution and child begging. To solve these problems, the country’s income must be more evenly and justly distributed. 52. Crime can be committed on many levels local, national and international. All of these often exploit children especially in child prostitution, drug trafficking, child beggar “gangs” and crime rings, to name but a few. Solutions 53. More effective law enforcement and law reform is needed to improve protection of child rights. The message conveyed should be that all children on Thai territory should benefit from protection of the law in keeping with the Convention on the Rights of the Child.

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chapter 3 54. More training of officials, particularly at the local level, needs to be promoted so that they become acquainted with international standards on child rights and so that they take stronger action against those who exploit children. 55. Withdrawal of reservations to the Convention on the Rights of the Child should be ­initiated so as to respect the totality of child rights without discrimination. paras. 45–55. Ibid. (a) Revolutionary Party Announcement No. 294 of 1972 on inappropriate conduct of children defines a child as a person below 18 years of age who has not attained majority through marriage; (b) The National Youth Promotion and Coordination Act of 1978, which is the country’s key legislation in the promotion and development of youth, defines “youth” as a person who is not over 25 years old. The definition of “youth,” therefore, covers that of a “child”; (c) The Act Instituting the Juvenile and Family Courts and the Juvenile and Family Procedures of 1991 defines the word “child” as a person over 7 years old but below 14. It also defines the word “youth” as a person who is over 14 years of age, but below the age of 18 years. para. 76. Also: paras. 82 and 113. Ibid., para. 124. Ibid., para. 127. Ibid. 10 mid decade goals as follows: (a) eradication of poliomyelitis; (b) eradication of tetanus among newborn infants; (c) ­reduction of measles incidence and deaths; (d) maintenance of child immunization coverage; (e) control of diarrhoea; (f) reduction of acute respiratory infections; (g) promotion of breast-feeding; (h) reduction of iodine deficiency; (i) reduction of vitamin A deficiency and (j) reduction of iron deficiency. These 10 targets will be achieved by 1995, after which date the implementation will be expanded to include other areas for children’s health and quality of life in society. para. 128. Ibid., para. 132. Ibid., paras. 144–150. Also para. 143. Ibid., paras. 155–160. Ibid., para. 169. Ibid., paras. 185–193. Ibid., paras. 248–249. Ibid., para. 258. Ibid., para. 285. Ibid., para. 306. Ibid., paras. 318–319. For measures to lower child mortality: paras. 322–324. Ibid., para. 329. Ibid., para. 330. Ibid., paras. 333–341. Ibid., para. 342. (The national budget was about 20% of the total budget.) Ibid., paras. 344–354. Ibid., para. 372. See also para. 362. Ibid. The response was as follows: Despite the fact that Thailand is not a signatory to the Convention relating to the Status of Refugees of 1951 and the Protocol relating to the Status of Refugees of 1967,

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Thailand’s policy and practice abide by many of the principles enshrined in the Refugee Convention and Protocol. The present Government does not, in practice, favour forced return of asylum seekers and displaced persons fleeing armed conflicts. Instead, to alleviate the plight of these persons, including children, the Government has taken a humanitarian approach and granted them temporary refuge pending durable solutions, which include their return to their countries of origin in safety and with dignity, and third-country resettlement if they are determined to be refugees in accordance with the refugee definition stipulated in the 1951 Convention. unhcr has also been given access to all groups of displaced persons, although there is more direct presence of unhcr in regard to the Vietnamese and Lao. 381. In caring for displaced children in mass influx situations in particular, the Thai Government provides protection and humanitarian assistance, namely: (a) Basic life necessities, such as food, accommodation, sanitation, basic health care that includes supplementary foods for malnourished children, and immunization; (b) Assistance in education, ranging from pre-school and primary education to foreign language training, even though these children are not of Thai nationality and are not registered as inhabitants of Thailand; (c) Vocational training, such as typing, and training in home economics and mechanics, etc. paras. 380–381. Ibid., paras. 390–393. Thus the report admitted these concerns: 394. The system of Juvenile and Family Courts in Thailand is limited and does not yet cover all parts of the country. It includes the Central Juvenile and Family Court in Bangkok, 8 provincial Juvenile and Family Courts, and Juvenile and Family Sections in 13 provincial courts. 395. The age guidelines of the court proceedings do not match the age guidelines in the Convention on the Rights of the Child, meaning that not all “children” receive the same treatment. 396. The period of detention before trial, at a maximum of 30 days, is too long. Furthermore, the period can be extended if prosecutors have sufficient reasons. 397. The number of children who have been deprived of their freedom is not known for certain; accurate figures are not yet possible to come by. 398. Immediate access to the law and other forms of assistance is a problem still without a solution. Efforts by non-governmental organizations have not been enough as the organizations are small. There are as yet no legal guidelines on guaranteeing children their freedom. 399. The number of children in the Observation and Protection Centres is on the rise, which is a common problem in many modern societies where preventive measures to deter children from committing crimes in the first place are needed. 400. Children are still punished by caning in the Observation and Protection Centres when they break rules. Solutions 401. The number of Juvenile and Family Courts should be increased to cover the entire country. 402. The Juvenile and Family Court should revise its definition of a child to 18 years of age to correspond with the Convention.

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chapter 3 403. Laws regarding rights and freedoms should be revised and amended so that they are practicable and comprehensive. 404. The Observation and Protection Centres should be upgraded and punishments should no longer include caning. paras. 394–404. Ibid., paras. 436–440. 441. Statistics concerning child labour in Thailand are derived from various sources: the Labour Force Survey and the Child and Youth Survey of the National Statistical Office, the Industries and Workers Survey of the Ministry of Labour and Social Welfare. A Comprehensive Report on the Situation of Child Labour in Thailand reported in 1993 that, in the 13–19 age group, there were 4.1 million children in the labour force. Among them, at least 525,300 were children between 13 and 14 years of age. The Labour Force Survey 1993 showed that there were 516,800 working children and another 17,600 who engage in some kinds of work at some time, including those unemployed, looking for work and part of the seasonally inactive labour force. This number covered a wide range of work, but for children who are engaged in employment, the industries and workers statistics show that, in 1990, there were at least 95,184 children (13–18) who worked in enterprises of whom 60,926 were girls and 34,258 were boys. Another source of information on young workers is the record of labour inspection. In 1993, it stated that 24,001 and 4,506 children under the age of 18 were working in the production industry and in the wholesale, restaurant and hotel industry respectively. para. 441. The situation thus invited solutions: 444. The child labour protection law should be amended by raising the minimum age and reducing their working hours to six hours a day. 445. Compulsory education will be extended from six to nine years, and primary and lower secondary school pupils should be educated on labour conditions and labour protection before their entry into the labour market. 446. Scholarships and educational loans should be increased, local job creation encouraged and occupational training and management techniques that attract children to self-employment promoted. paras. 444–446. Ibid., paras. 451–457. Ibid.: 459. According to a unicef report, “Thailand’s Children: A Situation Analysis of Children and Women in Thailand in 1993,” estimates of the number of child victims of prostitution vary. The Police Department estimates 160,000 child victims of prostitution throughout the country, believed to be under 16. The Department of Communicable Diseases Control, Ministry of Public Health, carries out an annual survey by counting the number of prostitutes attending the venereal diseases clinics. They estimate there to be just under 86,500 prostitutes under 18 in Thailand. The Centre for the Protection of Child’s Rights, an ngo which rescues children from prostitution, gives the highest estimate – 800,000 children below the age of 18. This figure was obtained by multiplying the estimated number of establishments with the estimated number of women per establishment. On the other front, the End Child Prostitution in Asian Tourism (ecpat) campaign in Bangkok estimates that the number of ­prostituted children is currently around 250,000.

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460. In 1994, the National Commission on Women’s Affairs estimated 150,000–200,000 prostitutes, of whom not more than 20 per cent were children. Meanwhile, the Department of Public Welfare of the Ministry of Labour and Social Welfare put the number at 23,000 to 26,000. Another report submitted in 1994 to the Institute for Population and Social Research of Mahidol University, Thailand, estimated the number of prostituted children aged 11 to 17 to be 67,000 and 30,000–100,000 for the high-risk group and the non-risk or Low risk group, respectively. The former is based on risk factors including four risk variables: (a) living in an urban area; (b) living apart from the family; (c) being a migrant within the last five years; and (d) not attending school, while the latter group includes children who are living in rural areas, non-migrants, living with family members and attending schools. On another front, the report estimated the number of prostituted children from the total number of commercial sex workers (csws). Based on an estimated 200,000 csws, it is suggested that the number of prostituted children is between 27,000 and 90,000 with 36,000 the most likely estimate. 461. In 1995, The Progress of Nations, a publication released by unicef, estimated that there were 100,000 children involved in prostitution in Thailand. 462. Differences in the statistics are partly based on different methodologies in data gathering. This indicates that improvements in coordinating data are needed. The Government was emphasizing three interventions: prevention such as public awareness, suppression such as case work and assistance such as vocational training and the provision of shelters. …. 463. The main laws concerning prostitution, which also cover sale and trafficking for sexual purposes, are as follows: (a) The Penal Code of 1956. Under the Code, prostitution is not illegal but procurement for the purpose of prostitution is. Further, consent of a child under 15 is no defence against the charge of rape. There are heavy penalties against child sexual exploitation; (b) The Prostitution Suppression Act 1960. The Act was promulgated under pressure from the United Nations campaign for the abolition of prostitution. This Act replaced the Contagious Diseases Prevention Act of 1908, which aimed to control prostitution. The law was intended to eliminate prostitution by making it illegal. It applied sweeping measures against all forms of prostitution adult or child, male or female, without distinction. However, the penalties are light; (c) The Sale of Women and Girls Act 1928. The Act was passed as a result of the perceived increase in the numbers of foreign nationals in Thai brothels. This prohibits the sale of women and girls for any reason. paras. 459–463. Ibid. However, various improvements were needed, bearing in mind implementation problems: Problems 469. There is inadequate law enforcement. A related problem is that there is selective application of the law. The Penal Code, which provides for heavy penalties for child sexual exploitation, is not utilized sufficiently. However, the law which provides for lighter penalties, (namely the Prostitution Suppression Act) tends to be used. This implies that perpetrators enjoy a degree of impunity.

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chapter 3 470. There is a lack of coordination between organizations, both governmental and nongovernmental. Action against criminals who exploit children is inadequate. 471. There are budget constraints in implementation, resulting in a shortage of trained personnel and institutions to provide assistance and vocational training. 472. Those rescued fail to follow the advice given to them, making many projects not as effective as they could be. paras. 469–472; 469–481. Ibid. 486. The police can press charges of sexual intercourse or rape against somebody only if the offender’s sex organ has penetrated the child’s sex organ. If not, the act will be considered only an ‘indecent act.’ 487. When a child is raped, especially by someone close, the offence is not usually reported for prosecution. 488. There is an insufficient budget for the operation, resulting in a shortage of trained and experienced personnel to help solve rape problems. Solutions 489. Relevant laws and regulations should be revised to provide protection to children who are rape victims. 490. Serious and effective campaigns should be conducted to prevent and crack down on rapes and indecent activities. 491. A close watch should be kept on the social environment, for example, on entertainment places and all forms of the media so that they do not arouse sexual desires in members of the public. 492. Education should be provided and statistics gathered on rape. paras. 486–492. Ibid. Thus the self-reflection offered by the report was as follows: Problems 505. The suppression of child trafficking is hampered by a lack of legal clarity and inadequate enforcement. 506. Lack of evidence, particularly clear descriptions of the abducted child, could cause a problem for officials involved in data collection, tracing and rescue. This happens when the child in question is very young and cannot be well remembered by parents, relatives or guardians. 507. Child trafficking cases are sometimes not processed properly by the police. Parents are told to look for the abducted child first before officially reporting the case or the police treat the case as that of a missing person. In the case of a missing person, once the child is rescued or returned, the police’s responsibility ends and the case may be considered closed. But a child abduction or trafficking case necessitates lengthy and time-consuming investigation at the end of which all culprits are expected to be arraigned. 508. Thailand has a long border with Myanmar, the Lao People’s Democratic Republic and Cambodia. Thailand and Malaysia are separated by a long land and sea border which does not lend itself to comprehensive monitoring and control against child abduction and against the use of each other’s territory as a base for trafficking. Besides, Thailand has not reached bilateral agreements on crime prevention and suppression with its neighbours. 509. There is no central unit to coordinate all crackdown efforts or collect information on child trafficking. paras. 505–509. See also : paras. 510–514.

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Ibid.: paras. 522–529. Concluding observations, supra note 5: 3. The Committee notes the State party’s recent adoption of a new Constitution (1997) which guarantees the promotion and protection of human rights, including children’s rights as recognized by the Convention, and calls for the establishment of a national human rights committee charged with monitoring human rights. 4. The Committee notes the recent efforts undertaken by the State party in the field of law reform. In this regard, it welcomes the enactment of the Amended Criminal Procedure Code concerning indecent acts committed against both boys and girls; the Criminal Procedure Code concerning juvenile defendants below the age of 18 years; the Act concerning Measures of Prevention and Suppression of the Trafficking in Women and Children of 1997; the Prevention and Suppression of Prostitution Act of 1996; the Occupational Training Promotion Act of 1993; and the Labour Protection Act of 1998. 5. The Committee notes that the Eighth National Economic and Social Development Plan (1997–2001) has given priority to human development, including child protection and participation. In this regard, it welcomes the initiatives to extend greater development opportunities to vulnerable and disadvantaged groups and implement special monitoring systems in the area of child labour and prostitution. The Committee also welcomes the State party’s establishment of indicators, including social indicators (basic minimum needs); indicators on child and youth development; and indicators on child rights. 6. The Committee notes the cooperation between the State party and non-governmental organizations, particularly in the preparation of the report, and the current initiative to review policies and legislation to ensure compliance with the Convention. paras. 3–6. Ibid., paras. 7–20. Ibid., para. 21. Ibid., para. 23. Ibid., para. 24. Ibid., para. 25. Ibid., para. 26. Ibid., para. 27. Ibid: 28. The Committee notes the efforts of the State party to ensure protection and humanitarian assistance to displaced children. The Committee expresses its concern, however, that the legal framework for protection of unaccompanied and asylum seeking children remains unclear. It is also concerned at the situation of children deprived of their liberty placed in immigration detention centres, especially in view of the lengthy detention periods. The Committee recommends clarification of the State party’s legislative framework to ensure adequate protection of unaccompanied and asylum seeking ­children, including in the field of physical safety, health and education. Procedures should also be established to facilitate family reunification. All appropriate measures should be taken by the State party to avoid the placement of asylum seeking children in immigration detention centres. The State party may consider seeking assistance from unhcr in this regard. The Committee also suggests that the State party consider ratifying the 1951 Convention relating to the ­Status of Refugees and its 1966 Protocol, the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. para. 28.

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Ibid. 29. While welcoming the recent adoption of the Labour Protection Act of 1998, in which the minimum legal age for access to work has been increased from 13 to 15 years, the Committee remains concerned at the high rate of economic exploitation, as well as at the increasing number of children leaving school, sometimes at an early age, to work to support themselves and their families. In this regard, the Committee encourages the State party to introduce monitoring mechanisms to ensure enforcement of labour laws. The Committee also suggests that the State party consider ratifying ilo Convention No. 138 concerning the minimum age for admission to employment. 30. The Committee expresses concern at the continuing high rate of sexual abuse of children, including child prostitution and trafficking and sale of children, which affects both girls and boys. In this regard, the Committee recommends that measures be taken, on an urgent basis, to strengthen law enforcement and to implement the State party’s national programme of prevention. Further, the State party should seek to step up its efforts to implement an awareness raising campaign and a thorough monitoring system at the community level. Rehabilitation within, as well as outside of, institutions should be further enhanced. In an effort to combat effectively intercountry trafficking and sale of children, the Committee suggests that the State party increase its efforts in the area of bilateral and regional agreements with neighbouring countries to facilitate the repatriation of trafficked children and encourage their rehabilitation, including within the framework of the regional Mekong Conference on Migration. The Committee urges the State party to continue implementing the recommendations formulated in the Agenda for Action adopted at the 1996 Stockholm World Congress against Commercial Sexual Exploitation of Children. It also recommends that the State party envisage ratifying the 1949 Convention for Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. paras. 29–30. Ibid. 31. While the Committee notes that the State party has enacted legislation relating to the establishment of juvenile courts, it is still concerned at the general situation with regard to the administration of juvenile justice and in particular its compatibility with the Convention, as well as other relevant United Nations standards. The Committee is particularly concerned that the juvenile justice system is not implemented throughout the State party. The Committee is also concerned at reported cases of ill-treatment of children by law enforcement personnel. The Committee recommends that the State party consider taking additional steps to reform the system of juvenile justice in the spirit of the Convention, in particular articles 37, 40 and 39, and of other United Nations standards in this field, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty. Particular attention should be paid to considering deprivation of liberty only as a measure of last resort and for the shortest possible period of time, to protecting the rights of children deprived of their liberty and to expanding the juvenile justice system to ensure full coverage throughout the State party. Training programmes on relevant international standards should be organized for all professionals involved with the system of

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­juvenile justice. The Committee also recommends that the State party consider ratifying the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. The Committee suggests that the State party consider seeking technical assistance from, inter alia, the Office of the High Commissioner for Human Rights, the Centre for International Crime Prevention, the International Network on Juvenile Justice and unicef, through the Coordination Panel on Technical Advice in Juvenile Justice. para. 31. Second report: supra note 6, para. 2. Ibid., para. 4. See children’s report, supra note 6. Supra note 51 : Problems 19. The reason why Thailand maintains its reservations to crc is mainly the political unrest in neighbouring countries, which has pushed periodic flows of displaced persons into Thai territory, as well as a large influx of foreign labourers and illegal immigrants. Thailand has so far taken the responsibility of looking after the welfare of these people on humanitarian grounds, despite the strain on its budget in the midst of a long economic slump after the crisis. At the consultative meetings among related agencies to look at the pros and cons of withdrawing Thailand’s reservations to crc, there were arguments against the withdrawal. Yet the effort to work towards the withdrawal is still pursued. Solutions 20. Cooperation should be sought from international organizations in terms of budget and various forms of assistance to help bring about the withdrawal of the reservations. There should be further consultative meetings among related agencies to study plausible procedures and approaches that are favourable to the withdrawal of the reservations. A working group may be specially set up to review the reservations in detail. paras. 19–20. Ibid. As for the follow-up and monitoring issue, it noted various mechanisms: 48. Apart from the Sub-Committee on Child Rights, which has functioned to monitor the implementation of crc, there also exists the Sub-Committee for Monitoring and Evaluation of the Core Action Plan of the Declaration for Thai Children. This SubCommittee appoints a Task Force to compile indicators for the monitoring and evaluation of the governmental agencies concerned with regard to their child development work performance. The indicators compiled fall into three categories, namely health, education and children in difficult circumstances. In 1999, some data compilation was carried out using the above sets of indicators. The remaining work was expected to be completed in 2000. 49. There are other subcommittees whose functions relate to the monitoring of the implementation of crc, e.g. the Sub-Committee on the Development of Youth Laws. Otherwise, follow-up to and monitoring of crc implementation is usually carried out by government officials under the agencies concerned, e.g. the Ministry of Labour and Social Welfare for child rights regarding labour. 50. Moreover, an annual report on the status of children and youth in Thailand has been compiled for submission to the Government. Independent body to promote and protect child rights

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chapter 3 51. Referring to the report that Thailand has drafted an Act on Children’s Ombudsman, there is no need for further action on that, since the Thai Constitution of 1997 already stipulates the appointment of a National Human Rights Commission and a Parliament Ombudsman, which can be regarded as two independent bodies that will perform the tasks of promoting and protecting the rights of children as well. Cooperation among civil society, ngos and a mechanism to monitor progress 52. Thailand’s Eighth National Economic and Social Development Plan sets a strategy to promote civil society processes in every province. These will each become a forum or mechanism to gather ideas and opinions from various sectors in setting the direction for the development of their respective province, as well as to gain support and participation from civil society. The civil society process was piloted in 16 provinces during 1995–1997, and has so far expanded to 25 provinces, with a plan to further expand to other provinces. The civil society movement varies from one province to another, and may concern issues like natural resource conservation and ecotourism, drug prevention, etc. This civil society movement now evolves at every level, from the central administration down to provincial, district, subdistrict and village levels. These civil societies have played an important role in the various aspects of development, e.g. public health, community business and environment. They have been well supported by government agencies at all levels to participate in the planning for the development of their respective localities and regions. 53. Apart from these civil societies, there has been more cooperation among governmental organizations …, ngos and the communities. Through this cooperation, several pilot projects pertinent to the child and youth development work have been carried out, e.g. the pilot project to build and strengthen the community network to protect child abuse and sexual exploitation, and the Youth United for Community Services. 54. A survey and collection of data on existing networks for children and youth development has been carried out and found that there are 20 central administration networks, 5 regional networks and 13 youth networks, totalling 38 networks. paras. 48–54. Ibid. It noted as follows: 58. Although Thailand had been hit by an economic crisis, the budget allocated for child development, focusing on education, health and social services, was the first priority annually during 1993–2000. It can be seen that the proportion of the budget for social development, 34.73 to 45.14 per cent, was much higher compared with the budget allocated for other areas of development. For example, 17.63 to 22.69 per cent has been allocated for economic development; 16 to 20.43 per cent allocated for national security and internal peace and order; 11.19 to 15.51 per cent allocated for overall administration; and 11.17 to 14.59 per cent allocated for debt payment. 59. The budget allocation for social development continuously increased during 1993– 1997. However, due to the economic crisis, the budget decreased to 44.63 per cent in 1998 and 44.30 per cent in 1999. In 2000, the budget increased once again to 44.32 per cent……. paras. 58–59. Ibid., para. 75. Ibid., para. 86. Ibid. 102. If a young person over the age of 17 commits a crime, he or she may be sentenced to capital punishment or life imprisonment, depending on the severity of the offence.

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Thai law allows the court to exercise its discretion in imposing the penalty. Section 76 of the Criminal Code states, “For a person aged 17 years but not over 20 years … if the court deems fit, it may decrease the degree of penalty for that offence by one third or by half of the total. 103. Article 37 (a) of the Convention on the Rights of the Child forbids capital punishment or life imprisonment for a child. Therefore, the above criminal law is contradictory to the provisions in the Convention, as there is allowance for the court to impose the reduced penalty or the full penalty. In practice, the court normally exercises its discretion in favour of a reduced penalty if the offender is a child. Solutions 104. A new criminal law act is being proposed in order that capital punishment and life imprisonment cannot be imposed on children aged below 18 years. paras. 102–104. Ibid. 124. The Boxing Sport Act of 1999 was promulgated in Thailand with some provisions concerning children. The minimum age for registering as a boxer is 15 years. To organize a boxing sport competition for children under 15 years of age, it is imperative that full security equipment be provided. This is to protect children from possible injury. However, concerns have been expressed among people working for the welfare of children both in the governmental and non-governmental sectors, including academics and experts; it is thought that children may not have the psychological and physical maturity required for this type of sport, and that their development may be affected. 125. To fully understand the issues surrounding children in boxing, a survey was conducted at the end of 1999: it was found that a large number of children do participate in this sport. About 75 per cent of the total number of boxers are under 18, with 51 per cent under 15 years. These children enter boxing between the ages of 8 and 12 years; some child boxers enter the ring at the age of 12. Although their general standard of living and health are reasonably good in terms of welfare and safety, the majority do sustain injuries from the practice and are affected physically and mentally; they may suffer general injuries, such as muscle pain, dizziness, vision blurring and chronic muscle inflammation. In addition, most children do not have health insurance. 126. Field doctors experienced in taking care of boxers feel that the sport is detrimental to child health in several ways: physical growth may be stunted; the children feel tired and weak as a result of weight control measures; head injuries may cause delays in terms of intellectual development and other areas of development. Such doctors propose that children should be at least 15 years old before entering boxing. In terms of educational achievement, children engaged in boxing perform slightly worse academically. Some teachers, however, say that these children have accelerated development in terms of personality, discipline, courage and self-confidence. Other teachers differ in opinion, believing that boxing may have long-term negative affects in terms of health, intellect and motivation to pursue their studies; that is, children seriously engaged in boxing may show less interest in lessons in the classroom. Problems 127. Boxing is an activity that poses risks to the health, safety, and physical and intellectual development of children participating in the sport. There are currently limited legal

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chapter 3 provisions to protect young boxers, particularly for the age range under 15 years. Solutions 128. It is proposed that an amendment to the Boxing Act 1999 be made to increase the minimum age for registration as a boxer to 18 years. While the changes to the Act are pending, special protective measures in welfare and safety should be provided to young boxers aged 15–18. 129. The above-mentioned law should be revised and amended to provide benefits and protection to children aged below 15 years serving as trainee boxers. This should begin at the initial stage when young boxers are selected to become trainees in the boxing training camps. paras. 124–129. Ibid., para. 133. Ibid., para. 148. Ibid., para. 179. Ibid., para. 189. Ibid. 203. Details relating to this matter were provided in Thailand’s initial report and Thailand’s replies to the list of issues of 1998, which addressed aspects related to the Nationality Act of 1992. This states that offspring of at least one parent holding Thai nationality acquire Thai nationality automatically. For those born in Thailand but without that prerequisite for Thai nationality – such as children of illegal immigrants or persons temporarily residing in the country and children of displaced persons or minority groups – Section 2 of the Nationality Act of 1992 allows them to apply for Thai nationality on an individual basis. However, some Thai children still face problems relating to lack of birth documents, leading to an inability to register, and subsequent non-recognition as Thai nationals. 204. Birth documents will be issued for children born to illegal immigrants in Thailand, and hence the child will not be deprived of basic benefits such as health, a basic standard of living and education in particular, as this contributes to improving the quality of life for all people. The Thai Government also provides educational assistance to children in neighbouring countries adjacent to the Thai border. Cambodian children can attend schools in border areas in Thailand and will be equally treated without discrimination. This is based on the principle of peaceful co-existence among people in the same country, neighbouring countries, and the same and neighbouring regions in the world. paras. 203–204. Ibid., para. 210. Ibid., para. 219. Ibid., para. 225. Ibid., para. 232; paras. 235–237. Ibid., paras. 244–247. Ibid. Ibid., para. 267. Ibid., para. 287. Ibid., para. 294.

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Ibid., para. 300. Ibid., para. 310. Ibid., paras. 256–264; 313. Ibid., para. 318. Ibid., paras. 342–343. Ibid., para. 348. With regard to social security, there were various entry points: 354. The Social Security Acts of 1990, 1994 and 1999 have included provisions for the following cases: − Illness; − Childbearing; − Invalidity; − Death; − Child support; − Old age. Once employees have resigned from work, they are still protected for six months in the following cases: illness, invalidity, childbirth and death. 3. Childcare services for working parents 355. The State has supported the establishment of preschool services both in rural areas and overcrowded urban communities. In assisting working parents, the State has taken the following steps: (a) Determined the ratio of students living in the neighbourhood of a school whom the school has to admit; (b) Encouraged schools to provide insurance against accidents to all students, the parents contributing to the insurance; (c) An entitlement of 150 baht per month will be paid for two children under 6 whose parents’ workplace has more than 10 employees and whose father or mother has contributed to the social insurance fund for 12 months. paras. 354–355. However, there were loopholes as follows: Problems 357. Social security does not cover small workplaces that have less than 10 employees. The Fund for Health Insurance Cards lacks effective income-testing procedures, allowing those who are better off to receive greater benefits than those who are not. Health-care provision for those in need such as the elderly, war veterans and the disabled tends to be less adequate. This indicates an injustice in public health-care services. 358. Funds to assist villagers may be blocked by administrative problems due to a lack of systematic analysis; those who are in need of real assistance may not receive their entitlements. Children in single-parent families are still neglected by the State. There is no follow-up, evaluation and reporting system in order to assist parents with childcare. Solutions 359. Social security should also cover workplaces that have fewer than 10 employees, including irregular work and the agricultural sector. In order to set up a system of

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chapter 3 income-testing, it is suggested that the poverty line proposed by the National Economic and Social Development Board be used. There should be follow-up and evaluation of social security projects to make them more efficient and comprehensive. paras. 357–359. Ibid., para. 369. Ibid., para. 376. paras. 371–374. Ibid., para. 371–418. Ibid., paras. 481–482. Ibid., para. 483 ff. Ibid., para. 483–493. Stocktaking of the situation revealed these concerns: 494. Thailand is not a party to the Convention relating to the Status of Refugees and has no other domestic laws related to refugees. As Thailand made reservations to Articles 7 and 22 of the Convention, the protection for displaced children is not officially or legally covered by this international law in the country. 495. Displaced persons/asylum-seekers in Thailand do not enjoy any economic rights due to their lack of legal status. Displaced children are not eligible to enroll in school in Thailand. However, those who are allowed temporary refuge in temporary shelters are provided with primary school education tailored to suit their particular context. 496. Currently, there is no official registration at birth for children born at the temporary shelters, even if they were born at hospitals in town and their births are reported to the provincial authorities. Thus, displaced children lack identity papers/official documents. Solutions 497. As has been noted, the main obstacle to providing proper and timely protection to displaced children emanates from the fact that Thailand has not acceded to any of the international instruments concerning refugees. At present, the Ministry of Foreign Affairs is placing considerable importance on this matter. The Ministry has therefore set up a committee to consider the possibility of accession to the 1951 Refugee Convention. paras. 494–497. Ibid., para. 506. Ibid., para. 508. Ibid., para. 512. The report reflected as follows: Problems 536. At present, budgetary constraints do not permit nationwide coverage of Juvenile and Family Courts. If a province has no Juvenile and Family Court, the same procedures as applied to adults will be used. However, efforts have been made to impose more lenient measures through the Criminal Procedure Code that can be applied anywhere, regardless of whether those areas have Juvenile and Family Courts. Solutions 537. In addition to the progress regarding the revision of the Criminal Procedure Code, Thailand should strive to encourage the courts in the provinces where there are no Juvenile and Family Courts or Juvenile and Family Sections to apply the procedures stipulated in the Act Instituting Juvenile and Family Courts and Juvenile and Family

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Procedures of 1991. Thus, children outside the jurisdiction of the Juvenile and Family Courts can be equally protected. paras. 536–537. Ibid. The situation was described as follows: Problems 542. According to the Criminal Code, Article 76, it is stipulated that “if a person below 17 years of age but not yet over 24 years of age commits a criminal act, the court has the power to reduce the scale of punishment.” This means that technically, juvenile offenders aged 17–18 years old could be subject to the death penalty although in practice, the court has never imposed the death penalty on anyone below 18 years of age. In practice, there are still problems concerning the treatment and care of juvenile delinquents on probation, due to the budgetary and personnel constraints as well as the increasing number of juvenile offenders. Solutions 543. The amendment and implementation of laws to prohibit capital punishment in relation to juvenile offenders should be expedited and community networks and the private sector encouraged to participate in probation programmes for juvenile offenders, which in turn helps bridge the gap between adults and children. paras. 542–543. Ibid. 555. Article 86 of the Thai Constitution of 1997 stipulates that the State shall promote employment for people of working age; protect workers – especially children and women – and provide a system of labour relations, social security and fair wages in accordance with the Labour Protection Act of 1998. Changes to relevant legislation and policy are as follows: − Compulsory education was extended from six to nine years, to delay entry into the labour market; − The minimum age for employment was raised from 13 to 15 years of age, making it possible to keep children in school longer and preventing early entry into the labour market; − An employer must notify labour inspectors of the employment of a child below 18 years of age within 15 days of hiring. The employer must also record any changes in the employment conditions and keep the record at the workplace ready for official inspection during working hours. Lastly, the employer must notify labour inspectors of the termination of a child’s employment within seven days of the last working day; − An employer shall provide a child worker with a continuous rest period of no less than one hour per day after four hours of work, and the child employee shall be provided with some additional rest periods as specified by the employer; − A child worker under 18 years of age shall be entitled to take leave of not more than 30 days per year with pay to attend meetings or seminars, obtain education or training, or leave for another activity that is arranged by an academic institute or a government or private agency; − An employer is prohibited from demanding or accepting guarantee money for any purpose from a child worker and from paying the wages of a child worker to any other person; sexual harassment is prohibited.

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chapter 3 556. The Labour Protection Act also has provisions specifying the scale of punishment for offences, as follows: − Sexual harassment of a child worker below 15 years carries a maximum penalty of a 20,000 baht fine; − Employment of a child below 15 years carries a penalty of up to one year’s imprisonment, or a fine of up to 200,000 baht, or both; − Failure to notify a labour inspector of the employment of a child under 18 years carries a penalty of a fine of up to 20,000 baht; − Failure to grant leave of up to 30 days per year to a child worker to attend meetings, seminars or training programmes carries a penalty of a fine of 10,000 baht; − Failure to provide rest periods as prescribed by law, or forcing a child worker to perform tasks prohibited by law, or paying the child’s wages to persons other than the child, or demanding or accepting a deposit from a child worker, will result in a jail term of not more than six months or a fine not exceeding 100,000 baht, or both. Forcing a child to work during prohibited hours that leads to harm to the child’s physical or mental health or the child’s death carries a prison term of up to one year or a fine of up to 200,000 baht. 557. In relation to foreign child workers, the Labour Protection Act of 1998 provides protection for employees working on Thai territory, including foreign labour, regardless of sex or age. The law provides for equal protection in relation to work contracts, working conditions and safety at work. 558. In situations where foreign workers are employed without official permission, the Department of Labour Protection and Welfare will coordinate with the relevant agencies, including the Department of Employment, the main agency responsible for granting work permits for foreign workers, and with the Immigration Office or the police, to render assistance and to take action towards repatriating these workers to their home countries. paras. 555–558. Ibid. 559. The Labour Protection Act of 1998, Article 49, sets forth the types of work which an employer shall be prohibited from permitting a child employee under the age of 18 to perform. These provisions are in line with the Convention on the Rights of the Child regarding the minimum age for employment. The types of work that are prohibited are as follows: − Smelting, blowing, casting or rolling of metal; − Metal stamping; − Work connected with heat, cold, vibration, noise and light the levels of which are different from normal levels, which could be hazardous, as prescribed in the ministerial regulations; − Work connected with hazardous chemicals as prescribed in the ministerial regulations; − Work connected with micro-organisms, which could be viruses, bacteria, moulds or other germs as prescribed in the ministerial regulations; − Work connected with poisonous materials, explosives or inflammable materials, except for work in fuel oil service stations as prescribed in the ministerial regulations;

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− Driving or controlling of forklifts or cranes as prescribed in the ministerial regulations; − Work which uses electric or motorized saws; − Work which must be done underground, underwater, in a cave, in a tunnel or in a shaft; − Work connected with radiation as prescribed in the ministerial regulations;− Cleaning of machinery or engines while the machinery or engines are in operation; − Work which must be performed on a scaffold more than 10 m from the ground; − Other work as prescribed in the ministerial regulations. para. 559. Ibid., para. 572. There remained some key problems: Problems 576. The Labour Protection Act 1998 prohibited an employer from hiring a child employee under 15 years of age and defined conditions for the employment of a child. For foreign child workers, although they are protected by the law, in practice they faced certain difficulties. Due to their illegal status and/or language barriers, these children have difficulty in filing complaints to authorities. Solutions 577. The Royal Thai Government has adopted measures and programmes to assist child labourers. Types of assistance include scholarships, educational loans, occupational and skills training, and occupational training for local people to cushion the impact of the economic crisis on children who had been laid-off as a result of the crisis. In addition, there are programmes aimed at preventing the employment of children aged between 13 and 15 years old who have completed compulsory education but have not continued their education by providing them with intensive general education or vocational education for a period of 1½ years to delay their entry into the labour market. Another measure is the promotion of self-employment through counselling and guidance on capital, market information and job placement. There are services to receive complaints and provide assistance, such as temporary shelter and rehabilitation services to homeless children. There are also activities to promote children’s learning and development, such as mobile libraries, youth centres, sports centres and other. 578. Cooperation is also sought from the private sector in regard to skill development training, in conformity with the Occupation Development Act of 1995. A private company can provide a training programme of its own but the training curriculum must be approved by the Department of Skills Development. Currently there are 41 private enterprises registered as providers. To encourage greater cooperation from the private sector, the law has been amended to improve tax benefits as an incentive for the companies. The Council of State has approved the amendment, which is pending the parliament’s consideration. paras. 576–578. Ibid., para. 579. Ibid., para. 580. Ibid., para. 581. The national policy was as follows: 582. In 1998, the Royal Thai Government issued an order of the Prime Minister’s Office on the “Policy on the Prevention and Suppression of Drug Abuse.” The order outlines various measures aiming at the following: (1) limiting the expansion of drug abuse; (2) reducing the widespread use of drugs, with clear target areas; (3) preventing

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drug abuse at all levels, from family, educational institutions, down to the community ­level; (4) treating drug addicts as patients; (5) imposing punishment on dealers, importers, exporters and influential supporters; (6) strictly enforcing the sentences passed by the court; (7) information-based suppression and psychological operations to reduce, eradicate and destroy drug syndicates; (8) promoting self-sufficiency through income-generation activities and ensuring protection; (9) multilateral collaboration among countries; (10) putting drugs prevention and suppression at the top of the agenda of all government agencies; (11) providing protection to State officials and other persons involved in drug prevention and suppression; and (12) imposing severe punishment on State officials who support, protect, seek and receive benefits from drug-related crimes. para. 582. 97 Ibid. There were pervasive issues, however: Problems 588. Some State officials are involved in drug trafficking and some are afraid of the influence of the drug trafficking rings. Suppression is not seriously taken, and the punishment process is slow. Public education targeting children and youth has not been undertaken in a sustained manner. Solutions 589. Some solutions include: − Raising awareness of State officials to be more responsible; − Speeding up the punishment process; − Intensive and widespread public education campaigns; − Encouraging communities to organize and implement livelihood activities to supplement income; − Focusing on timely remedial and preventive measures, such as organizing field sports and other recreational activities for children and youth. paras. 588–589. 98 Ibid. 590. There is no consensus on the number of child victims of sexual abuse, due to ­different estimates made by various organizations. The estimates of child victims of sexual abuse in 1995 ranged from 16,276 (Ministry of Public Health) to 20,000 (Department of Social Welfare), to 30,000–40,000 (National Commission of Women’s Affairs). 591. The number of offenders who were arrested on charges relating to prostitution during the period 1992–1996 was 51,532, of whom 478 were children. During the period 1997 to June 1998, the Foundation for Child Protection rescued 415 children who had been sexually abused, exploited and tortured. paras. 590–591. 99 Ibid., para. 596. 100 Ibid., para. 612. 101 Ibid., para. 641; paras. 649–650. 102 Concluding Observations, supra note 6. The Committee welcomed “the adoption of the Child Protection Act (b.e. 2546) in 2003, which defines the child as a person below 18 years of age and eligible for protection and welfare assistance in compliance with the principles of non-discrimination and the best interests of the child. It also welcomes the amendment or adoption of several laws aimed at enhancing implementation of the Convention, inter alia, the National Education Act of 1999 and the Compulsory Education Act

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of 2002, the Act on Redress for the Damaged and Compensation and Expenses for Offenders in Criminal Cases of 2001, and the 2004 amendment to the Penal Code with the effect that capital punishment and life imprisonment cannot be imposed on children for crimes committed below the age of 18. In addition, the Committee notes with appreciation the establishment of mechanisms that enhance the promotion and protection of children’s rights in the country, including the National Human Rights Commission and the SubCommittee on Child, Youth and Families, the National Child Protection Committee and Provincial Child Protection Committees.” para. 3. Ibid., para. 4. Ibid., paras. 5–7. Ibid., para. 9. Ibid., para. 13. Ibid., para. 15. Ibid., para. 16–21. Ibid., para. 25. Ibid. …The Committee reiterates its previous recommendations and, in line with Article 7 of the Convention, recommends that the State party continue to review its legislation, in particular the Act for Registration of Inhabitants (b.e. 2534) of 1991, with a view to ensuring that the birth registration system is equally accessible to all children in the whole territory of the State party, in particular, migrant and refugee children, children belonging to indigenous and minority communities, and children living in the most remote or in tsunami-affected areas. The Committee also recommends that the State party improve the existing birth registration system by: (a) Introducing mobile birth registration units and public awareness-raising campaigns to reach the most remote areas of its territory; (b) Strengthening cooperation between the birth registration authority and maternity clinics, hospitals, midwives and traditional birth attendants, in order to achieve better birth registration coverage in the country; (c) Continuing to develop and widely disseminate clear guidelines and regulations on birth registration to officials at the national and local levels; and (d) Ensuring that children whose births have not been registered and who are without official documentation have access to basic services, such as health and education, while waiting to be properly registered. para. 32. Ibid., para. 34. Ibid., para. 40. Ibid., para. 43. Ibid. The Committee urges the State party to: (a) Review its domestic legislation in order to penalize all forms of abuse, including sexual abuse, neglect, mistreatment and violence against children and to define clearly these crimes against children; (b) Conduct timely and adequate investigations of all cases of child abuse and violence and to ensure that child victims of violence and abuse have access to adequate counseling and multidisciplinary assistance for recovery and reintegration;

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(c) Establish or expand services available for the physical and psychological recovery and social reintegration of victims of sexual abuse as well as any other child victims of abuse, neglect, ill-treatment, violence or exploitation; (d) Take appropriate measures to prevent the criminalization and stigmatization of victims, including through cooperation with non-governmental organizations; (e) Carry out public education and awareness-raising campaigns of the consequences of ill-treatment of children, addressing sociocultural barriers that inhibit victims from seeking assistance; and (f) Establish a data collection system for violence against children and conduct further analysis of the issue with the aim of preventing and reducing this phenomenon. para. 45. 115 Ibid. Where the defendant has child caring responsibilities, the Committee recommends that the principle of the best interests of the child (art. 3) is carefully and independently considered by competent professionals and taken into account in all decisions related to detention, including pretrial detention and sentencing, and decisions concerning the placement of the child. It recommends that alternative care for those children who are separated from their mothers in prison be regularly reviewed ensuring that the physical and mental needs of children are appropriately met. Furthermore, it recommends that the State party continue to ensure that alternative care allows the child to maintain personal relations and direct contact with the mother who remains in prison. As regards children residing in prison with their mothers, the Committee recommends that the State party ensure that living conditions in prisons are adequate for the child’s early development in accordance with article 27 of the Convention. The Committee encourages the State party to seek assistance from, among others, unicef and other United Nations bodies in this regard. para. 48. 116 Ibid. 50. The Committee recommends that the State party, taking into account the United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities (General Assembly resolution 48/96) and the recommendations adopted by the Committee on its day of general discussion on the rights of children with disabilities (see CRC/C/69), take all necessary measures to: (a) Formulate and adopt a comprehensive national policy for children with disabilities, and allocate necessary financial and human resources to implement the plan; (b) Prevent and prohibit all forms of discrimination against children with disabilities, including by raising awareness of their rights, special needs and potential, and ensure equal opportunities for their full participation in all spheres of life; (c) Standardize public and private services for children with disabilities and monitor the accessibility and quality of these services; (d) Provide children with disabilities with physical access to schools and access to appropriate information and communication tools; and (e) Establish a data collection mechanism on children with disabilities and to use such data in developing policies and programmes to promote their equal opportunities in society, paying particular attention to children with disabilities living in remote areas of the country. para. 50.

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Ibid., paras. 54; 58. Ibid., para. 61. Ibid., para. 63. Ibid., para. 67. Ibid. 69. The Committee recommends that the State party take urgent measures to ensure that the children of migrant workers or their family members, in particular non-registered migrants, are not arbitrarily arrested, detained or persecuted and that if they are to be returned to their country of origin, the principle of non-refoulement should be respected. It recommends that the children of migrant workers are ensured access to health and social services and to education in accordance with the principle of non-discrimination. Furthermore, the Committee recommends that the State party ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. para. 69. 122 Ibid. The Committee recommends that the State party: (a) Effectively implement domestic labour laws; (b) Extend the Labour Protection Act to ensure protection for children working in the informal sector; (c) Improve the labour inspection system in order to safeguard that work performed by children is light work and not exploitative, and enable that system to monitor and report on the practice of domestic and rural labour by children; (d) Ensure that children engaged in labour continue to have access to education, training and recreation; and (e) Continue to actively participate in regional and interregional ilo/ipec activities. para. 71. 123 Ibid. In light of article 34 and other related articles of the Convention, the Committee recommends that the State party: (a) Strengthen measures to combat all forms of trafficking within the country and across its borders by ensuring effective enforcement of the relevant legislation; (b) Strengthen and expand bilateral and multilateral agreements and cooperation programmes with other countries of origin and transit to prevent trafficking in children; (c) Ensure that all trafficking cases are investigated and that perpetrators are charged and punished; (d) Ensure that child victims of trafficking are protected and not criminalized and that they are provided with adequate recovery and social reintegration services and programmes; (e) Pay particular attention to the existing risk factors, such as the increasing sex tourism in the region, and continue to collaborate with the Tourism Authority of Thailand (tat) and tourism service providers in this respect; (f) Continue to raise public awareness about the negative effects of child trafficking and train professionals working with and for children as well as the general public to combat and prevent trafficking in children;

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(g) Ratify the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (2000); and (h) Strengthen cooperation, among others, with the ilo/ipec, International Organization for Migration and non-governmental organizations. para. 75. 124 Ibid. The Committee reiterates its previous recommendation and urges the State party to ensure that its legislation and practice concerning juvenile justice is in full compliance with the provisions of the Convention, in particular articles 37, 39 and 40 as well as other relevant international standards in this area such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) (General Assembly resolution 40/33), the United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines) (General Assembly resolution 45/112),the United Nations Rules for the Protection of Juveniles Deprived of their Liberty(General Assembly resolution 45/113) and the Guidelines for Action on Children in the Criminal Justice System (annexed to Economic and Social Council resolution 1997/30 of 21 July 1997). In this regard, the Committee recommends that the State party: (a) Amend the relevant provisions of its Penal Code to increase the minimum age of criminal responsibility to an internationally acceptable standard; (b) Amend its national legislation to reinforce the prohibition against the use of corporal punishment in penal institutions; (c) Ensure that detained persons below 18 years are always separated from adults, and that deprivation of liberty is used only as a last resort for the shortest appropriate time and in appropriate conditions; (d) Expedite the provision of separate facilities and/or separate cells in detention facilities for persons below 18 to ensure that they exist in all districts, and to provide educational, vocational and therapeutic programmes for those incarcerated; (e) Continue to implement alternative measures to detention such as diversion, probation, counselling, family and community group conferencing, community service or suspended sentences; (f) Support and reinforce prevention strategies and measures, particularly with regard to vulnerable children; (g) Support community-based programmes and services to assist children in conflict with the law and their reintegration with society; and (h) Seek technical cooperation from, inter alia, unicef and ohchr. para. 77. 125 Ibid., para. 125. 126 Third report, supra note 7: (a) Promotion of creative activities, through Child Development Caravan Project; (b) Family strengthening, creating network and knowledge; (c) Promotion of educational and learning media for children and adolescents and their families; (d) Development of the Child-Friendly City Strategy (safe, healthy, family oriented, learning, rights-based, participation-centered, risk-free cities, other appropriate issues) (see Annex 2–2, 1); (e) Promotion of early childhood development. …… para. 14.

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127 Ibid., paras. 29–35. 128 Ibid. 24. The National Child and Youth Development Promotion Act of 2007 (see para. 6) internalize the principles of the Constitution and crc for the right to participation of the child. The child and youth council has been established nationwide as a ­mechanism for self-expression, development and knowledge-sharing among children themselves. Currently, from total 954 councils, 877 are at district level, 75 at provincial level, one at Bangkok Metropolitan and one at the national level. The councils organized several activities including planning, meetings, public voluntary projects and dissemination of information on the provinces and their own activities through various forms of local media (see Table5). 25. Section  40 (6) of the Constitution provides for the right of children and youth to proper protection and treatment in judicial process. The Criminal Procedure Code Amendment Acts (No. 20) of 1999 and (No. 26) of 2007, amend provisions concerning interrogation, investigation and identification of alleged persons by injured persons or witnesses who are under 18 years of age must be done in an appropriate setting with the presence of a multidisciplinary team, consisting of a psychologist, social worker, public prosecutor or lawyer and the person requested by the child. If, for any necessary reason, it is not possible to arrange or wait for the full team, the inquiry may proceed only when the child expresses his/her wish not to have or wait for and the reason for the absence of such person must be recorded. 26. When interrogating, if it is deemed that the question may cause traumatic impact on the child, it must be posed through the psychologist or social worker without the child hearing and the questions may not be repeated without any reasonable grounds. The child is entitled to be informed about this process. If the child expresses apprehension towards any of the persons present in the inquiry, that person must be replaced. Besides, the identification of alleged persons must be done without the child being seen. These procedures apply to interrogation and cross-examination of a child as a witness and as a suspect. These provisions illustrate the fact that opinions, intentions and wishes of a child are taken into account in all judicial proceedings as provided by the law. paras. 24–26. 129 Ibid., para. 29–35. 130 Ibid. The situation of violence was described as follows in the report: Violence, abuse and abandonment of children 46. Violence against children occurs at home, in school and elsewhere in various forms, despite having laws and regulations explicitly prohibiting it. As part of the national policy to combat violence against children and women, November 14 has been declared a national day for combating violence against children and women, symbolized by a white ribbon. The two laws which are the main regulating mechanisms are: (a) Child Protection Act of 2003 defines procedures in dealing with a child to enable him/ her to be nurtured and developed to the fullest potentials. To protect safety of the child, the law stipulates forbidden acts which include abandonment and negligence as well as intervention and assistances by the authorities in place of lawful guardians. The Act also stipulates other forbidden acts which carry imprisonment sentences or fines, or both;

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chapter 3 (b) Domestic Violence Victim Protection Act of 2007, a competent official is required to arrange for the victim to receive medical treatment (see also para. 40 above). In the case where a complaint has been filed, the inquiry official must conduct the inquiry without delay and send the inquiry file, within 48 hours after having the offender in custody, to a public prosecutor in order to file the case with the Court. Interrogation of a domestic violence victim must have a multidisciplinary team presented. A competent official has the power to impose provisional remedial measures in favor of the victims. If the case is filed with the Court, the Court may exercise its power to impose provisional remedial measures with a view to maintain family status or may impose punishment (imprisonment for a term of not exceeding six months or a fine of not exceeding 6,000 baht, or both) or any order as appropriate. It was found that the average number of victims per day has increased annually (see Table 6). The causes may be the rise in the actual cases and/or because the victims have become more aware of their rights and less embarrassed to report. 47. The osccs in hospitals under the supervision of the Ministry of Public Health (moh) nation-wide are focal points for networking and operations on this issue in various areas across the country provide assistance to victims of domestic violence psychologically, physically, and sexually. Cooperation on this issue also comes from various organizations including Ministry of Education (moe), Public Health Foundation, Office of the Thai Health Promotion Fund, Office of the Attorney-General and the Ministry of Justice (moj) (see Annex 2-2, 2). However, the punitive measures stipulated in these two Acts tend to be lenient as their underlying principle is to maintain family relationships for the best interests of the family members. 48. Violence in school involves both corporal punishment by teachers and bullying among students themselves. The findings of the surveys on attitudes towards disciplining measures and behaviors of teachers towards students and on bullying in school, conducted during 2005–2006 indicated that most teachers (60%) perceive corporal punishment as necessary and still apply other strong disciplining measures, including physical and verbal abuse, or intentionally ignoring them. Bullying is rampant, both in the presence of teachers and out of their sight. It is difficult to address this problem as children tend not to report the incidents and parents are unaware of it. 49. There is also a problem of inter-school fighting. Efforts have been made to address this problem through the promotion of child and youth participation project, guided by the Public Policy for the Prevention and Suppression of Violence in Schools of the Office of Thai Health Promotion Fund. Under this policy, the Office has implemented a violence-free school project and expanded the child protection school project by encouraging children, families and communities to participate in social activities with a view to promote a peaceful approach to managing conflicts, thereby minimizing violence in schools. Training has been organized for school administrators, together with the production of educational materials and network building to raise awareness on this issue. 50. In 2009, two Sub-committees were established within the National Commission for Child and Youth Development Promotion to collect data and formulate the national policy and plan on prevention of violence against children and youth. Data on the experience, recognition, awareness and impact of violence were collected from 50,000 respondents, consisting of primary to upper secondary school students, parents,

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teachers, officials from the juvenile observation and protection centers, welfare centers and educational institutes nationwide. The findings of situation analysis will be used for policy and strategy planning laying down guidelines for coordination and referral across agencies, lessen complexity and cover all dimensions of the problem. paras. 46–50. 131 Ibid. 51. Regarding sexual abuse of children, it is a criminal offence according to the Penal Code on offences relating to sexuality. Sections  276–285 of the Penal Code Amendments (No. 19) and (No. 20) of 2007 define explicit penalties for whoever commits rape or indecent act, or procures, seduces or takes away for an indecent act a woman, man or a child with or without consent in order to gratify the sexual desire of another person. These acts are liable to punishment of imprisonment, fine or both. The term of punishment varied according to the age of the victims. Offenders of victims under 13 years of age, receive longer terms of punishment than offenders of victims over the age of 15. If the offences are committed against a descendant or person under care or guardianship, the punishment will increase by one-third of those prescribed for such offences. A draft law to amend this Act has been proposed to increase the punishment of imprisonment and fine, commensurate with the current situation. 52. Rehabilitation and reintegration of child victims of abuse are regulated by the abovementioned laws and the Anti-Trafficking in Persons Act of 2008. This Act aims to make anti-trafficking efforts more effective and provide better protection and assistance to victims, most of whom are children and women. Under this Act, the younger the victim is, the heavier the punishment. 53. Regarding the assistance and safety protection for victims of trafficking, Sections 33– 39 of this Act stipulate in details responsibilities of the authority and rights of the victims. It is required that the msdhs provide assistance with due consideration to human dignity and differences in sex, age, nationality, race, and culture of the trafficked person as appropriate on food, shelter, medical treatment, physical and mental rehabilitation, education, training, legal aid, the return to the country of origin or domicile, the legal proceedings to claim compensation according to the ministry regulations. 54. The victim must be informed about his/her right to receive protection, whether it is prior to, during and after the assistance and has the right to have his/her opinion taken into account. The authority has the duty to provide protection to ensure the safety of the trafficked person under his/her care, also taking into account the safety of the family members of trafficked person. 55. In the case where the trafficked person will make a statement or testify as a witness, the trafficked person shall be under the protection of the law on the protection of witness in a criminal case in all respects. If the trafficked person has to return to the country of residence or domicile, efforts must be made to ensure protection for the trafficked person in that country. 56. Consideration may be made to assist the trafficked person to get permission to stay in the Kingdom temporarily and be temporarily allowed to work in accordance with the law. The Act also provides for the safe return of the trafficked person to the country of residence and for assistance to the trafficked person who is an alien permitted to reside in the Kingdom under the immigration law, or being granted a relief, in an

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chapter 3 exceptional case, to stay in the Kingdom, or who is domiciled here, to return to the Kingdom, if he or she so wishes. paras. 51–56. For new law on women inmates and children, ibid., para. 57. Ibid., paras. 59–60. Ibid., paras. 61–63. Ibid., paras. 67–69;0.75. Ibid., para. 98. Ibid., para. 99. Ibid., para. 102. Ibid. 106. Despite not having yet ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Thailand has a clear policy regarding migrant workers. The 1992 policy on regularization of migrant workers was revised in 2004 to grant leniency regarding employment of migrant workers, allowing migrant workers and accompanied persons aged over one year to be registered and granted temporary stay in Thailand. Registered migrant workers totaled 1.3 million in 2004 and increased to 1.52 million in 2006. In 2007, the Government approved a law to allow migrant workers with legal permits that expired to apply for extension and to be granted another two-year stay until 28 February 2010, and later extended to 28 February 2012. 107. Thailand entered into a bilateral agreement with Laos, Myanmar and Cambodia concerning the employment and legal entry of migrant workers. Migrant workers are required to register with the Ministry of Labor and given a Migrant Registration Form with a 13-digit identification number (para. 29). They are permitted to work in specific industries in designated parts of the country. 108. The moh have taken pro-active measures in providing basic welfare services for migrant workers, including health check-up and health insurance against serious communicable diseases (such as tb, leprosy and elephantiasis); hiv/aids prevention through provision of azt for infected mothers; mobile medical units working in cooperation with international health care volunteers; training of midwife; provision of birth delivery kits to midwife; organization of special projects for high risk migrant workers in the areas where these migrants are highly concentrated; mother and child health care; issuance of birth certificate to all babies born at hospitals; vaccination against childhood diseases; development of family planning network; health survey; training of employers and international volunteers; and production of health care manual in Burmese language; organization of education for children migrant workers (see Headings C and F). 109. Revisions were made to legislation concerning labor protection and migrant workers in 2008 to grant more leniency and enable migrants to engage in lawful employment and access social welfares. A fund was established to facilitate the return of migrants to their countries (Core Document). paras. 106–109. Ibid. 110. Based on various studies on the subject, an estimated of 100,000 foreign children are engaged in child labor in 43 provinces that have been granted permission to hire ­migrant workers. Work conditions are poor. From a report on the Worst Form of Child

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Labour in 6 provinces (Chiangrai, Tak, UdonThani, Samutsakhon, Songkhla, and Pattani) conducted jointly between the Government and ilo in 2006 found that 35% were children aged below 15 years and 63% worked more than 8 hours per day. Migrant workers were not able to gain access to health care and education services. 111. Based on some studies, it is estimated that there are 20,000 street children in Thailand, most of whom are beggars and engaged in child labor. Assistance from the State and private organizations reached only 5,000 of these children. 112. Thailand became a State party to the ilo Convention No. 182 on the Worst Forms of Child Labor and the Convention No. 138 on Minimum Age since 2001 and 2005, respectively. 113. Domestically, steps have been taken to revise legislation to improve protection for children engaged in child labor, notably the Labor Protection Act (No. 2) of 2008. The Act contains provisions aimed at ensuring security and welfare of children engaged in child labor to protect them against risk situations. Under this Act, a child employee aged below 18 years is entitled to take leave for purposes of attending meetings, seminars and training, in which case an employer of the child is required to pay his or her wage for the duration of the leave which may not exceed 30 days per year. 114. The Act also set forth guidelines and direction for labor inspection to ensure effective enforcement of the law. Labor inspectors are authorized to inspect a place of business which appears to be at high risk of violating child employees’ rights, including small businesses; businesses which often failed to comply with the law; and new businesses which have not been inspected before. The Act establishes a community watch network to notify authorities on unlawful practices regarding child labor. 115. There are a number of ministerial regulations aimed at protecting child labor in an informal sector, including those issued in 2004, concerning fishery workers, agriculture workers, and home-based workers. The latter regulation requires employers to issue work contracts, define wages and provide equipment and safety guidelines. 116. The Home Workers Protection Act of 2011 which came into force on 15 May 2011 stipulates the protection of conditions of employment, minimum wages, safe working environment of children under the age of 15 years. In practice, a national master plan on the protection and rehabilitation of children engaged in the worst forms of child labor has been implemented in compliance with the ilo 182 Convention, in cooperation with ILO/International Programme for the Elimination of Child Labour (ipec). 117. Technical and financial support has been received from ilo/ipec for addressing the problems of child labor, forced labor, child exploitation and labor trafficking. In addition, there are a number of measures and activities under the Ministry of Labor, aimed at protection child labor exploitation (see Annex 2-4, and Thailand’s reports on the implementation of the Optional Protocol of the crc on the sale of children, child prostitution and child pornography, and the Optional Protocol on the involvement of children in armed conflict). paras. 110–118. 141 Ibid. 119. Sections 276–285 of the Penal Code stipulate protection for child victims of sexual abuse. The Anti-Trafficking in Persons Act of 2008 stipulates protection and assistance measures for victims of trafficking under Sections 33–41, with special protection for child victims. By virtue of this Act, such crime committed against a child aged

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chapter 3 15–18 years is liable to punishment of imprisonment and fine which will be increased by one third of that prescribed. If such act is committed against a child aged below 15 years, the punishment will be increased two-fold (Core Document). 120. In practice, a framework of cooperation in addressing the issue of trafficking in women and children is provided by MoU on Common Operational Guidelines for Government and Non-Governmental Organizations Engaged in Addressing Trafficking in Women and children. Projects and activities have been implemented under the National Policy and Plan of Prevention, Suppression and Combating Domestic and Transnational Trafficking in Women and Children of 2003. 121. Thailand signed a Memorandum of Understanding on Bilateral Cooperation to Eliminate Trafficking in Children and Women with Cambodia, Laos and Vietnam, as a legal framework for joint efforts in providing assistance to victims. ……. paras. 119–121. Ibid., paras. 122–127. Ibid., paras. 128–131. paras. 132–133. Third Report Concluding Observations, supra note 7, paras. 4–5. Ibid., para. 8. Ibid., paras. 10;14. Ibid., para. 18. Ibid., para. 20. Ibid. 22. The Committee urges the State party to strengthen its efforts to combat corruption at all levels and sectors, including by developing and implementing a vigorous anticorruption policy, carrying out anti-corruption campaigns and strengthening institutional capacities to effectively detect, investigate and prosecute cases of corruption. para. 22. Ibid. 30. In light of Human Rights Council resolutions 8/7 of 2008 adopting the report ¨Protect, Respect and Remedy¨ Framework and 17/4 of 16 June 2011 requesting the new Working Group to follow-up on this matter, both of which note that the rights of the child be included when exploring the relationship between business and human rights, the Committee recommends that the State party: (a) Provide a legislative framework, including Codes of Conduct, that require companies domiciled in Thailand, with particular attention to tourism industries, to adopt measures to prevent and mitigate adverse human rights impacts in their operations in the country and abroad; (b) Promote the inclusion of child rights indicators and parameters for reporting and provide specific assessments of impacts of business and industry on child rights; (c) Take measures to ensure that its companies respect child rights in its territory and when engaging in projects abroad and that appropriate remedies, including reparations are pursued in cases of violations; (d) Ensure that prior to the negotiation and conclusion of free trade agreements, human rights assessments, including child rights, are conducted and measures adopted to prevent violation. para. 30. Ibid., para. 32.

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152 Ibid. With regard to child participation: 40. In light of article 12 of the Convention and the Committee’s general comment No. 12 (2009) on the right of the child to be heard, the Committee recommends that the State party strengthen its efforts to ensure the active participation and involvement of all children up to the age of 18 years in decisions that affect them in the family, school and community. It also recommends that the State party undertake a regular review of the extent to which children’s views are taken into consideration and of their impact on policy-making, court decisions, and programme i­mplementation. Furthermore, the Committee recommends that the State party adopt measures to increase support to the Child and Youth Councils. para. 40. 153 Ibid., para. 42. 154 Ibid. para. 44. 155 Ibid., para. 46. 156 Ibid. 48. (a) Prohibit explicitly by law corporal punishment of children in the home and alternative care settings, including for disciplinary purposes; (b) Introduce sustained public education and awareness-raising and social mobilization programmes involving children, families and communities on the harmful effects of corporal punishment with a view to changing attitudes and promoting alternative, positive and non-violent forms of child-rearing and discipline; (c) Prioritize the elimination of all forms of violence against children, and ensure the effective implementation of the recommendations of the United Nations study on violence against children (A/61/299); (d) Provide information concerning the implementation by the State party of the recommendations of the above-mentioned study in its next periodic report, particularly those highlighted by the Special Representative of the Secretary-General on violence against children, in particular: (i) The development in each State of a national comprehensive strategy to prevent and address all forms of violence and ill-treatment against children, paying particular attention to gender; (ii) The introduction of an explicit national legal ban on all forms of violence against children in all settings; (iii) The consolidation of a national system of data collection, analysis and dissemination, and a research agenda on violence and ill-treatment against children. para. 48. 157 Ibid. (a) Undertake a comprehensive study to assess the situation of children placed in institutions, including their living conditions, care plans and services provided; (b) Set clear standards for existing institutions and the foster care system, including rules for the involvement of children and their parents in decision-making proc­ esses in accordance with article 9 of the Convention and ensure periodic review of the placement of children, in light of article 25 of the Convention. In this regard, the Committee encourages the State party to complete and operationalize the

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chapter 3 National Strategy on Temporary Family-based Care ensuring the best interests of the child; (c) Ensure that all alternative care institutions and programmes are well monitored, including by independent complaint monitoring mechanisms and nongovernmental organizations, with a view to ensuring the protection of children’s rights, and provide children with easy access to these mechanisms; (d) Pursue all necessary measures to allow children placed in institutions to r­ eturn to their families whenever possible and use the placement of children in institutions as a measure of last resort; (e) Take proactive measures for family strengthening and preservation to prevent widespread institutionalization of children. para. 52. Ibid., para. 53. Ibid., para. 55. Ibid., para. 57. Ibid., para. 61. Ibid. The Committee recommends that the State party (a) Take all necessary measures to educate children, adolescents and their families from different communities about hiv/aids and other sexually transmitted diseases; (b) Extend essential health and social services to the most marginalized children and families and combat vigorously any forms of stigmatization and discrimination; (c) Intensify its efforts to raise awareness of the negative consequences of early pregnancy and abortions. (d) Strengthen its adolescent reproductive health programmes, including life skills education; (e) Ensure comprehensive health services, confidential counselling and support for pregnant girls and accelerate the adoption of the Draft Reproductive Health Act. para. 63. And 65. The Committee urges the State party to take all appropriate measures, including awareness-raising campaigns targeted especially on adolescents and on the negative impacts of tobacco, alcohol and drugs. This should include peer education and life skills training on preventative interventions. It also recommends that the State party continue to provide treatment and rehabilitation programmes for children and adolescents with addiction to drugs and alcohol. para. 65. Ibid. 67…. (a) Strengthen its efforts to enhance capacity to develop and monitor poverty reduction strategies at the local and community levels, ensuring, in particular, equitable access to basic services such as adequate nutrition, clothing, housing, water and sanitation as well as to social and health services, and education; (b) Adopt temporary special measures and affirmative action to raise the standard of living among its disadvantaged population including the provision of specific earmarked funds and concrete assistance to support children and families disproportionately affected by poverty;

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(c) Study and consider the feasibility of introducing a universal child allowance scheme to redress disparities and give each child an equal chance of a good start in life. para. 67. 164 Ibid. (a) Adopt effective policies and other measures to ensure that every child from birth to school going age has access to holistic early childhood development (ecd) with effective support of essential health, nutrition, education and protection services to ensure his or her total development; (b) Develop quality and internationally accepted standards of ecd that are applied by local governments that have responsibility for ecd; (c) Encourage and create incentives for children of non- Thai speaking and poor households to attend early childhood development programmes, especially children in the North Eastern and Southern regions; (d) Take urgent measures to provide educational opportunities for the large number of primary school age children (6–11 years) currently out of school; (e) Conduct a comprehensive study on the causes and extent of dropout and low retention in the education system and develop a plan of action with a clear time frame to solve the problems, paying particular attention to the gender dimensions, disparities and preventive measures; (f) Encourage children, especially boys in the southern border provinces, to continue their education in secondary schools; (g) Implement the National Language Education Policy of 2010 to ensure effective bilingual education from the early years especially for non-Thai speaking children in accordance with article 30 of the Convention; (h) Adopt clear and concrete measures to greatly improve the quality of education and improve educational outcomes at all levels, including through the provision of teaching and learning materials and facilities, enhanced teacher training and supervision, increased recruitment of qualified teachers, in particular women and persons from minority and indigenous groups, enhanced capacity building at the Ministry of Education and improved systems of monitoring of the learning of children; (i) Consider ratifying the unesco Convention against Discrimination in Education. para. 69. 165 Ibid. The Committee urges the State party to take all necessary measures to improve the conditions in camps for temporary refugees by providing them with adequate basic needs. The Committee also recommends that the State party renew its registration of newly arrived asylum-seekers in order to keep account of their possible needs. Furthermore, the Committee recommends that the State party treat the asylum-seekers and refugees according to their status and do not subject them to detention or deportations to a country where their lives might be in danger. In this regard, the Committee encourages the State party to seek technical assistance from the Office of the United Nations High Commissioner for Refugees (unhcr). The Committee also recommends that the State party ratify the 1951 Convention relating to the Status of Refugees and its 1967 Protocol and establish a national legal and institutional framework for protection of refugees. para. 71.

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166 Ibid. The Committee recommends that the State party conduct a risk assessment study as to whether the return of migrants and their children to their countries of origin would be safe. Furthermore, the Committee recommends that the State party take necessary legislative and policy measures to protect children in various migration situations from exploitation and hazardous working conditions. para. 73. 167 Ibid. The Committee recommends that the State party study and provide, in its next periodic report, information on the employment of children in the informal sector, such as in agriculture, tourist industry, begging and domestic service, and take measures to reinforce the labour inspection system to monitor and detect children working in these sectors. It urges the State party to amend its legislation to prohibit involvement of children in informal sectors with particular attention to vulnerable groups of children such as foreign children and children in street situations. It recommends that the State party consider ratifying the ilo Convention N°189 (2011) concerning decent work for domestic workers. para. 75. 168 Ibid. In light of its general comment No. 13 (2011), the Committee urges the State party to: (a) Continue its efforts to raise awareness of the public and strengthen early detection and prevention mechanisms and ensure full protection for all children victims of sexual exploitation and abuse, including in the family and outside; (b) Take the necessary measures to reduce the duration of investigation and proceedings in criminal cases regarding sexual abuse of children and ensure appropriate protection of child victims from perpetrators; (c) Conduct comprehensive research on the root causes, nature and extent of sexual exploitation and abuse of boy and girl children in all settings, involving both Thai and foreign children in the State party, and provide data on the number of complaints, investigations and prosecutions conducted in this regard; (d) In doing so, the Committee recommends that the State party implement its recommendations under the Optional Protocol on the sale of children, child prostitution and child pornography (CRC/C/OPSC/THA/CO/1) as well as the recommendations of the Special Rapporteur on trafficking in persons, especially women and children, after her visit to the State party in August 2011. The Committee also recommends that the State party take into account the outcome documents adopted at the 1996, 2001 and 2008 World Congresses against Sexual Exploitation of Children held, respectively, in Stockholm, Yokohama and Rio de Janeiro. para. 77. 169 Ibid. The Committee recommends that the State party continue and strengthen its efforts to ensure the full implementation of juvenile justice standards, in particular articles 37, 39 and 40 of the Convention and other relevant international standards, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty (the Havana Rules), taking into account the Committee’s general comment No. 10 (2007) on children’s rights in juvenile justice). It reiterates that the State party: (a) Raise the minimum age of criminal responsibility to an internationally acceptable age and in no circumstances below the age of 12 years;

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(b) Ensure that children deprived of liberty are held in detention only as a last resort and for as short a time as possible and that their detention is carried out in compliance with the law; (c) Ensure that children are detained separately from adults as recommended by the Working Group under the universal periodic review, that they have a safe, child sensitive environment and that they maintain regular contact with their families; (d) Promote alternative measures to detention such as diversion, probation, counselling, community service or suspended sentences, wherever possible; (e) Strengthen the training of judges and judicial personnel on the principles and provisions of the Convention and the Optional Protocols. (f) Develop social reintegration programmes for children in conflict with the law; (g) Make use of the technical assistance tools developed by the United Nations Inter­ agency Panel on Juvenile Justice and by its members, which include the United Nations Office on Drugs and Crime, unicef, ohchr and ngos, and to seek technical advice and assistance in the area of juvenile justice from the members of the Panel. para. 80. Ibid. 81. The Committee recommends that the State party ensure, through adequate legal provisions and regulations, that all children victims and or witnesses of crimes, for example, children victims of abuse, domestic violence, sexual and economic exploitation, abduction, and trafficking and witnesses of such crimes, including those perpetrated by State and non-State actors, are provided with the protection required by the Convention and that it take fully into account the United Nations Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime (Economic and Social Council resolution 2005/20 of 22 July 2005, annex). para. 81. Ibid., paras. 82–85. Also: ……(b) Provide more economic opportunities to minority and indigenous communities and ensure their access to basic social services; (c) Collect systematically disaggregated data on the hill-tribe population (d) Take into account the Committee’s general comment No. 11 (2009) on indigenous children and their rights under the Convention. para. 83. And (a) Take immediate measures to ensure that the situation in the southern border provinces has no adverse effects directly and indirectly on children. In doing so, the Committee recommends that the State party implement its recommendations under the Optional Protocol on the involvement of children in armed conflict (CRC/C/ OPAC/THA/CO/1) without any delay; (b) Ensure that schools are not disrupted by State military and paramilitary units and are protected from attacks by non-state armed groups; (c) Provide as a matter of priority psychosocial support and services to children affected by the armed violence; (d) Expedite the adoption of the Plan of Action on the Protection and Development of Children and Youth in the Southern Border Provinces. para. 85. Ibid., para. 86. Per the new Juvenile Courts Act b.e. 2553 (a.d. 2013). For the work of the national human rights commission, see Vitit Muntarbhorn, Unity in Connectivity ? Evolving Human Rights Mechanisms in the asean Region (Boston/Leiden: Nijhoff, 2013).

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175 Protocol on Sale of Children, Child Prostitution and Child Pornography, supra note 1. Article 1 prohibits the sale of children, child prostitution and child pornography. 176 Ibid., Article 2 for definitions. 177 Ibid. On possession: Article 3(1)(c): prohibits “producing, distributing, disseminating, importing, exporting, offering, selling or possessing for the above purposes child pornography as defined in article 2.” 178 crc committee disagrees with double criminality rule: Concluding Observations, un Doc. CRC/C/OPSC/THA/CO/1(February 2012), supra note 7, para. 60. 179 See ilo Convention 182. 180 CRC/C/OPSC/THA/1 (July 2011), supra note 7: Situation of the sale of children and child prostitution. There has been an increase in commercial exploitation and abuse of children and child pornography overall. Methods and forms have changed in relation to luring and selling of children. Sellers or agents have adopted tactics that are making it more difficult for authorities to apprehend them. The lucrative nature of the business has caused innocent children to fall prey to exploiters in great number. Thailand is a source, transit and destination country for human trafficking. Children and women are being sent from Thailand to such countries as Malaysia, Japan, Taiwan, Bahrain, Australia, France and Germany. Thailand is a transit country for women and children trafficked from neighboring countries, including Myanmar, Laos, Cambodia and China, en route to those countries mentioned above. Thailand is also a destination country for economic migrants from neighboring countries, seeking better livelihood opportunities. This factor, coupled with Thailand’s policies in relation to economic incentives and tourism promotion, particularly in the upper part of the North of Thailand (Chiang Rai Province), which has been developed as part of the Greater Mekong Sub-regional Economic Zone, has resulted in the increase in the volume of domestic and foreign tourists and movement along the border areas. Greater movement along border areas has created channels for traffickers to lure and procure children for the purposes of sexual exploitation and pornography. para. 9. 181 Ibid.: Thailand is widely recognized, both by local and foreign markets, as a production and distribution source of child pornographic materials. The Internet Watch Foundation ranked Thailand fifth on the list of “Top Five Hosts” of child abuse websites in 1996. Based on reports of abuse by web users, almost 5,000 websites (3.6 per cent) can be traced to Thailand. In January 1996, research conducted by Assumption University of Thailand found that two per cent of internet users in Thailand aged between 15–24 years have met someone they talked to in chatrooms in person; 13 per cent of whom then engaged in sexual activities with such individuals. Social networking websites have become popular meeting venues among Thai children and teenagers who do not seem reluctant to share personal information, including nude pictures of themselves, and ignoring the risk of falling prey to sexual exploiters. These images are likely to be distributed via the internet and end up eventually on child pornographic websites. para. 16. 182 Ibid., paras. 21–24. 183 Ibid., paras. 34–49. 184 Ibid., para. 53. 185 Ibid., para. 60.

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Ibid., para. 92. Ibid., para. 94. Ibid., para. 94. Ibid., paras. 93–102; paras. 96 and 97. Ibid., paras. 103; 104. Ibid., para. 112. Ibid., para. 119. Ibid., para. 123. Ibid., para. 130–137. Ibid., para. 148. Ibid. para. 152. Concluding Observations, un Doc.CRC/C/OPSC/THA/CO/1(February 2012), supra note 7: 4. The Committee welcomes various positive measures in areas relevant to the implementation of the Optional Protocol, in particular the Anti- Human Trafficking Act of 2008. 5. The Committee also welcomes the progress achieved in the creation of institutions and adoption of national plans and programmes that facilitate the implementation of the Optional Protocol, including: (a) The adoption of the National Policy and Plan of Action for the Prevention and Suppression of Trafficking in Women and Children of 2012–2016. (b) The adoption of the National Policies and Plan of Action on the Prevention and Suppression of Commercial Sexual Exploitation of Children in 1996; 6. In addition, the Committee notes with appreciation the ratification of the following international human rights instruments: (a) The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol), in 2001; (b) The International Labour Convention No. 182 (1999) concerning the Prohibition and Immediate Elimination of the Worst Forms of Child Labour, in 2001. paras. 4–6. Ibid., para. 7. Ibid., paras. 11;12. Ibid., para. 13. Ibid., para. 24. Ibid. 4. The Committee welcomes various positive measures in areas relevant to the implementation of the Optional Protocol, in particular the Anti- Human Trafficking Act of 2008. 5. The Committee also welcomes the progress achieved in the creation of institutions and adoption of national plans and programmes that facilitate the implementation of the Optional Protocol, including: (a) The adoption of the National Policy and Plan of Action for the Prevention and Suppression of Trafficking in Women and Children of 2012–2016. (b) The adoption of the National Policies and Plan of Action on the Prevention and Suppression of Commercial Sexual Exploitation of Children in 1996;

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chapter 3 6. In addition, the Committee notes with appreciation the ratification of the following international human rights instruments: (a) The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol), in 2001; (b) The International Labour Convention No. 182 (1999) concerning the Prohibition and Immediate Elimination of the Worst Forms of Child Labour, in 2001. paras. 4–6. Ibid., para. 30. Ibid.: (a) Establish mechanisms and procedures for the early identification of child victims of the offences under the Optional Protocol, including by establishing cooperation mechanisms between law enforcement agencies, relevant ministries and the Child Protection Committees; (b) Ensure that children victims of trafficking are not subjected to long periods of time, waiting for their deportation; (c) Strengthen laws to ensure that video recordings of testimonies by child victims or ­witnesses of offences under the Optional Protocol are always accepted as evidence. para. 32. Ibid.: (a) Strengthen the capacity of government agencies to ensure and coordinate assistance and support to children victims of offences under the Optional Protocol; (b) Take all necessary measures to ensure that child victims of the offences under the Optional Protocol are provided with appropriate assistance, including for their full social reintegration and physical and psychological recovery; (c) Guarantee that all child victims have access to adequate procedures to seek, without discrimination, compensation for damages from those legally responsible, in accordance with article 9, paragraph 4, of the Optional Protocol, and establish a fund for compensation for victims, for those cases where they cannot obtain compensation from the perpetrator; (d) Seek technical assistance from unicef and the International Organization for Migration (iom) in the implementation of these recommendations. para. 34. Ibid., para. 35. Protocol on the Involvement of Children in Armed Conflict. CRC/C/OPAC/THA/1 (July 2011), supra note 7. Ibid., paras. 4;5. Ibid., paras. 7;9;10. Ibid., para. 22. Ibid., para. 31. Ibid., para. 32–35. 32. 3.1 Pre-undergraduate level. 33. Include: Armed Forces Academies Preparatory School, Royal Thai Air Force Band, Royal Thai Navy Band, Royal Thai Army Band, Military Technical Training School, Military Survey School, etc.

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Minimum age for attendance: 12 years and over. Curriculum: (1) Basic general subjects, such as social science, science, physical education, math, etc.; (2) Vocational subjects, such as naval mechanics and engineering; (3) Military subjects, such as military training. Study units. Study units required for basic general subjects are more than those for military subjects. For example, Military Technical Training School requires 92–100 units of basic general subjects and vocational subjects and eight units of military subjects. The Royal Thai Army Band requires 30 units of basic general subjects, 72 units of vocational subjects and 14 units of military subjects. Military service status. For some schools, such as the Royal Army Band, students will be admitted into a military service upon completion of their studies. For other schools, such the Royal Thai Army Band, higher study is required. Admittance into military service for some schools is also based on a physical examination, general knowledge examination and consent from parents or legal guardian. 34. 3.2 Undergraduate level Includes: Royal Thai Army Nursing College, Royal Thai Navy Nursing College, Royal Thai Air Force Nursing College, Phramongkutklao College of Medicine, Chulachomklao Royal Military Academy, Royal Thai Army Academy, Royal Thai Air Force Academy, etc. Minimum age for attendance: 16 years and over. Curriculum: (1) Basic general subjects such as social science, science, physical education, math, etc.; (2) Vocational subjects, such as nursing, mechanical engineering; (3) Military subjects, such as weapons handling, land, naval and air logistics, military disciplines, international laws, etc. Study units: study units required for basic general subjects are more than those for military subjects. For example, the Royal Thai. Navy Nursing College requires 3,684 hours of basic general and vocational subjects and 124 hours of military subjects (96 hours of theory and 28 hours of training) equivalent to 3.25% of the total study units. The Chulachomklao Royal Military Academy requires eight weeks of military training per year. Military service status. Students who have not graduated do not have the membership status of the armed forces and cannot participate in battles. For some schools, students will be admitted into a military service upon completion of their studies. If the studies are financed by private means, the students are entitled to pursue careers outside the armed forces. Age of graduation in most cases is 18 years and over. 35. In addition to these schools, there are military training units at some educational institutes which are open to interested people of both genders who are over 16 years of age and have parental consent. At present, there are 3,706 such units nationwide.

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chapter 3 The curriculum is divided into years 1–5, focusing on disciplining and good citizenship. The present demand for military training exceeds the annual quota of 30,000 students. paras. 32–35. Ibid., paras. 36–46. Ibid., paras. 47–48. List of Issues, un Doc.CRC/C/OPAC/THA/Q/1(October 2011). Country response to List: CRC/C/OPAC/THA/Q/1/Add1 (January 2012), paras. 1–6;5. Ibid. 9. The national law governing judicial procedures against persons who recruit children aged below 18 years, for the purpose of having an active part in armed conflict, is the Child Protection Act of 2003. The Act stipulates in Section 26 that a person is prohibited from: (1) taking or omitting any action which results in the torture of a child, physically or mentally; or (2) forcing, threatening, inducing, encouraging or allowing the child to behave improperly, or in a manner that is likely to be a cause of wrongdoing; or, (3) using, employing or asking the child to perform work or commit any act that is likely to be physically or mentally harmful to the child, affects his/her growth, or hinders his/her development. 10. Pursuant to Section 78 of the Act, any person who violates Section 26 shall be subject to punishment by imprisonment for a term of no more than 3 months, or a fine not exceeding Baht 30,000. A person who involves a child, aged below 18 years old, in armed conflict which results in physical and mental injuries to the child, is also regarded as having committed an offence of battery and, according to Sections 295–298 of the Criminal Code, shall be liable to imprisonment for a term of between 6 months to 10 years, or a fine not exceeding Baht 6,000, or both. In the case that such act is conducted by compulsion or deprivation of freedom, it is also regarded as an offence against liberty, pursuant to Sections 309–310 of the Criminal Code, and the punishment for such offence is imprisonment for a term of no more than 3 years, or a fine not exceeding Baht 6,000, or both. In addition, a person who does not personally commit the offence, but who causes another person to commit such offence, whether by use, compulsion, threat, employment, asking, inducement or encouragement, shall be guilty, pursuant to Section  84, as the instigator, and shall be subject to punishment as if he/she has committed the offence him/herself. Any person who assists, or facilitates, other persons to commit any offence, whether prior to or at the time of the offence, shall be guilty, according to Section 86, as a supporter, and will be subject to two-thirds of the punishment for such offence. paras. 9–10. Ibid. 11. Thailand has systematically undertaken measures to prohibit both the formal and informal association of children with Chor Ror Bor, as follows: (a)  In November 2009, the Southern Border Provinces Administration Centre (sbpac) issued a clear directive on the minimum age requirement for Chor Ror Bor to the governors of the three sbps. If any member of Chor Ror Bor is found to be under 18 years of age, that person must be replaced immediately by a person aged above 18 years. If relevant officers are found to have violated the said directive, he/she will also be penalized;

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(b) In August 2010, the Department of Provincial Administration, under the Ministry of Interior, issued a clear directive on the minimum age requirement for Chor Ror Bor (Letter No. MorThor 0308/W 18, dated 4 August 2010) to the governors of all provinces. The directive contains strict instructions to the Chor Ror Bor selection committees to clearly prohibit children aged under 18 years from being recruited to the Chor Ror Bor under their application processes. Moreover, the directive also instructed district offices to verify the list of Chor Ror Bor members already officially appointed. If any Chor Ror Bor member is found to be under 18 years of age, his appointment will be revoked; (c) On 28 February 2011, the Ministry of Interior issued the Revised Ministry of Interior Regulation on Officials of the Security Unit to Protect and Maintain Peace and Order in a Village (No. 2) 2011 which specifically includes the minimum age requirement of over 18 years before any person can be accepted to the Chor Ror Bor; and, (d) The Ministry of Interior has carried out inspections of Chor Ror Bor in the responsible areas, and found that no children under 18 years of age have been recruited, either formally or informally, to become a member of Chor Ror Bor. The sbpac has also carried out inspections in 5 sbps, and found that no children under the age of 18 have been recruited to become members of Chor Ror Bor. 12. In order to provide the utmost protection for children, the Ministry of Interior has dispatched teams to carry out regular inspections, and has ordered the responsible units to strictly comply with the Regulation, and to ensure that children are not brought into Chor Ror Bor checkpoints and bases, are not involved in patrols, and do not have access to weapons and ammunition. paras. 11–12. 220 Ibid. 15. (The Schools) admitted students at, or above, the age of 12. However, since 2010, it has adjusted its curriculum, and is accepting students at, or above, the age of 15. The curriculum consists of basic education, vocational education, and military education, with the main emphasis being on music training. The military education only involves, for instance, basic knowledge on disciplinary and organization management training, in regard to how to pay respect, according to the navy traditions and bugle signals, without any training for combat. 16. The Armed Forces Academies Preparatory School provides upper secondary education, and is open to students who are 14 years of age. Its curriculum consists of: (1) 46 units of compulsory subjects that include Thai language, social studies, health education, science and mathematics; (2) at least 20 units of optional subjects from the following groups of subjects: Thai language, social studies, health education, science-mathematics; and (3) activities, namely, 1 session of activities in accordance with the Regulation of the Armed Forces Academies Preparatory School on the Arrangement of Activities in Armed Forces Academies Preparatory School of 1991 per semester, 2 sessions of guidance activities and/or corrective activities, and/or learning development activities per week/semester, and activities which are selected by the students. The military training involves only the preparation of students before they continue onto military academy at a higher level. Such training includes military

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c­ haracteristics, and basic knowledge of military affairs, which are only theoretical training. Undergraduate schools 17. The undergraduate schools are open for students at or above the age of 16. These schools are, for instance, the Chulachomklao Royal MilitaryAcademy, Royal Thai Navy Academy and Royal Thai Air force Academy. They provide a 5-year programme which comprises education in various fields such as engineering, science and liberal arts. The military education only consists of basic education such as military communication, combat casualty care, and military disciplinary training, as the students are not soldiers and thus must not be involved in combat. paras. 15–17. 221 Ibid.: 18. The detention of a child under the age of 18, who is a suspect under Martial Law or the Emergency Decree in Thailand is in compliance with the Criminal Procedural Code, and the Juvenile and Family Court and Juvenile and Family Procedure Act of 2010. In particular, Section 72 of the Act prescribes that the child shall be brought to the Court within 24 hours for an investigation into whether the arrest was lawful, and Section 73 prescribes that the child shall be released upon the Court’s decision that the arrest was unlawful. However, in the case of a lawful arrest, the Court may order that the child be placed under the responsibility of his/her parents, guardians, or representative of the organization which has custody over the child, or any organization as the Court deems suitable. In the case that the child may pose a danger to others, or there are other reasonable causes, the Court may order the child to be detained in the juvenile observation and protection centre or other places which are deemed appropriate by the Court. 19. In the case where it is necessary to detain the child suspect under Martial Law or the Emergency Decree for the purpose of interviewing the child in relation to any information or facts, a Court’s approval must be sought, and the detention shall be in compliance with the specific procedures, which include separate detention of boys and girls, separate detention from adults; permission for visits from relatives or family; provision of food, water, clothes, medicine; prohibition of physical or mental abuse; and, the provision of a psychologist on occasions, or upon request. 20. Nonetheless, since 2009, there has been no detention of children under 18 years of age under Martial law or the Emergency Decree in Thailand, and the relevant agencies are becoming more aware about children’s rights. 21. In addition, in the best interest of the child, the Juvenile and Family Court and Juvenile and Family Procedures Act of 2010 prescribes protection measures for children under detention in Section 86, whereby, if the director of the observation centre sees the possibility of self-reformation in the child or youth without the need for prosecution, the director of the observation centre may recommend that the public prosecutor does not institute the prosecution, but instead, prepares a treatment and rehabilitation plan for the child, as a substitute for prosecution. 22. Other measures are set forth in Section 88 of the Act, which states that if upon the completion of the implementation of the plan, the public prosecutor issues an order not to instigate prosecution action against the child or youth, such order shall be final, and the right to prosecute the criminal case shall be terminated. In addition, Section 90 of the Act states that the Court may order the director of the observation

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centre, or any person it deems suitable, to prepare a treatment and rehabilitation plan instead of trial and adjudication, if the Court is of view that the child or youth may reform himself/herself. Additionally, Section 92 states that upon completion of the implementation of the treatment and rehabilitation plan, the Court may issue an order for the case disposal and an order in relation to the exhibits. In this case, the right to prosecute the criminal case shall be terminated. paras. 18–22. Ibid., paras. 24–25. Ibid., para. 30. Concluding Observations, un Doc.CRC/C/OPAC/TH/CO/1(February 2012),supra note 7, para. 4. Ibid., paras. 6–7. Ibid., para. 12. Ibid. 13. While welcoming the Ministerial regulation No 2, 2554 of April 2011 which prohibits persons below the age of 18 from taking part in village defence trainings, the Committee is concerned about reports of informal association of children in a range of functions by the village defence militia- Chor Ror Bor in the southern border provinces, who carry out the same or similar duties as formal members. The Committee is further concerned at the lack of clarity of the applicable rules, and awareness of the rules among key officials, the lack of implementation of existing policy and procedures, and the lack of effective oversight and accountability, which has created a situation where children could be vulnerable to formal and informal association with Chor Ror Bor. 14. The Committee urges the State party to take necessary measures to prevent and prohibit the informal involvement of children with the Chor Ror Bor. It further recommends that the State party establish effective monitoring and accountability mechan­ isms for key officials for both formal and informal involvement of children in village defence militias and raise their awareness of laws prohibiting such recruitment. paras. 13–14. Ibid. 15. The Committee is concerned that at undergraduate level, where the minimum age for attendance is 16 years and over, the curriculum includes military subjects, such as weapons handling, land, naval and air logistics, military disciplines, and international laws. 16. The Committee recommends that the State party: (a) Undertake a comprehensive review of all military schools under its jurisdiction with a view to ensuring their compliance with the provisions of the Optional Protocol; (b) Establish a comprehensive registration system of all pupils enrolled in military schools which collects data disaggregated by sex, age, socio-economic background and geographical location, and which is centralized and regularly monitored; (c) Consider regular joint monitoring of military schools by the Ministry of Education, the Ministry of Defence and the Child Protection Committees to ensure that such schools comply with the provisions of the Optional Protocol; (d) Ensure a clear prohibition of training on the use of firearms in military schools for children under 18 years of age. paras. 15–16.

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Ibid., paras. 17–18. Ibid., para. 20. Ibid., para. 22. Ibid., para. 24. Protocol on Communications. Supra note 1. See the Protocol on Sale of Children, supra note 1;4. New pornography law 2015. Statute to Amend the Criminal Procedure Code (Number 24) (b.e. 2558) 2015, Royal Gazette, Vol. 132, Part 86 Kor (8 September b.e. 2558), pp. 84–86 (in Thai). 236 Law enforcement: see crc Comment on corruption, supra note 144: 21. While noting as positive the efforts made by the State party to combat corruption, the Committee is concerned about the reports indicating that corruption remains pervasive among, inter alia, municipal and local government officials and law enforcement personnel, and thus diverts resources that could enhance the efficacy of government policies and programmes to implement the rights of the child. 22. The Committee urges the State party to strengthen its efforts to combat corruption at all levels and sectors, including by developing and implementing a vigorous anticorruption policy, carrying out anti-corruption campaigns and strengthening institutional capacities to effectively detect, investigate and prosecute cases of corruption. paras. 21–22.

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The International Covenant on Civil and Political Rights (iccpr) and Thailand Introduction The Covenant lays down a range of rights in the civil and political field.1 There are some 27 Articles on rights/substantive law, the remaining articles being mainly procedural – concerning the Human Rights Committee established to monitoring its implementation. The Covenant is complemented by two Protocols – one on individual communications allowing individuals to file complaints where local remedies have been exhausted, the other on abolition of the death penalty.2 The array of rights is found in Table 9. Table 9

iccpr: Summary of contents.

Article 1: self-determination Article 2: non-discrimination Article 3: equality between men and women Article 4: public emergencies and derogations Article 5: non-destruction of rights under the Covenant Article 6: right to life Article 7: prohibition of torture, cruel, inhuman and degrading treatment Article 8: freedom from slavery and servitude Article 9: liberty and security of the person Article 10: treatment of persons deprived of liberty with humanity Article 11: no imprisonment due to inability to fulfil a contractual obligation Article 12: liberty of movement Article 13: no arbitrary expulsion of alien lawfully in a territory Article 14: equality before the law Article 15: non retroactive penal law Article 16: recognition as a person before the law Article 17: right to privacy Article 18: freedom of thought, conscience and religion Article 19: right to freedom of expression Article 20: prohibition of propaganda for war and incitement to hatred Article 21: right to peaceful assembly Article 22: right to freedom of association © faculty of law, chulalongkorn university, 2017 | doi 10.1163/9789004326675_005

142 Table 9

chapter 4 iccpr: Summary of contents (cont.).

Article 23: protection of the family and right to marry/found a family Article 24: protection of the child, including birth registration, name and acquisition of a nationality Article 25: right to take part in public affairs Article 26: equality before the law Article 27: right of persons belonging to ethnic, religious or linguistic minorities to their culture, religion or language Source: Author’s own table derived from OHCHR, The Core International ­ uman Rights Treaties. H

The Covenant thus covers a broad range of civil and political rights. The cross section includes the right to self-determination (Article 1) to the promise of implementation without discrimination (Article 2), equality of rights (­Article 3), right to life – particularly permitting the death penalty only for the “most serious crimes” and prohibiting the death penalty for under 18’s (Article 6), and prohibition of torture and slavery (Articles 7 and 8). Security of the person is guaranteed by Article 9, with humane treatment under Article 10. Liberty of movement is ensured in Article 12, with the guarantee of access to justice where an alien is subject to expulsion (Article 13). Access to courts is provided for under Article 14, with further guarantees under Articles 15 to 17. Freedom of thought, religion, belief, opinion, peaceful assembly, association are found in Articles 18, 19, 21 and 22. Protection of the family and child is laid down in ­Article 23, while Article 24 stipulates the child’s right to acquire a nationality. Article 25 states that citizens have the right to participate in public affairs, while Article 26 guarantees equality before the law. The right of persons ­belonging to minorities to enjoy their own culture, religion and language, in community with members of the group, is found in Article 27. Importantly, while the Covenant provides for some exceptions to the various rights, such as in relation to national security and public health/order, those ­exceptions must not be arbitrary and must be based on law (legality), necessary to counter various risks (necessity), proportionate to the circumstances (proportionality) and in accordance with democratic practices (legitimacy).3 The trend from the Committee’s general comments adds other  conditions such as respect for the universality of standards and non discrimination.4 Thus ­several of the rights such as freedom of expression, manifestation of religion, assembly and association can be constrained subject to the criteria noted. With regard to the imposition of states of emergency, Article 4 lays down various rules such as the non-derogability of various rights and the need for the derogating State to inform the other States parties through the un

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Non-derogable rights.

Article 6: right to life Article 7: prohibition of torture, cruel, inhuman and degrading treatment Article 8 (paras. 1 and 2): prohibition of slavery and servitude Article 11: prohibition of imprisonment for inability to fulfill a contractual obligation Article 15: no retroactive criminal law Article 16: right to recognition before the law Article 18: freedom of thought, conscience and religion. Source: Author’s own table derived from OHCHR, The Core International ­H uman Rights Treaties.

Secretary General. Seven rights are absolute and non-derogable as in Table 10. Thailand became a party to the Covenant on 29 January 1997. There was no ratification by Parliament, the initiative being taken by the executive branch of Government. While no reservations were entered, four interpretative d­ eclarations – re Article 1(1), 6(5), 9(3) and 20(1) were conveyed to the un, as follows: (a) “Paragraph 1 of Article 1 regarding the right to self – determination to freely determine political status and to freely pursue economic, social and cultural development, Thailand shall follow the interpretation on the exercise of right to self determination according to the Vienna Declaration and its Plan of Action which is endorsed by the world conference on human rights and is the latest international document to have interpreted the said right. This document has stated that the exercise of this right shall not be related to any action which affects the integrity of territory or political unity of the State; (b) On paragraph 5 of Article 6 regarding the prohibition of capital punishment for crime committed by persons under eighteen years of age, Thailand has made an interpretative declaration to explain the practice under the Thai Penal Code, stating that Thailand has never, in practice, imposed capital punishment on a person under eighteen years of age. Section 74 of the Penal Codes provides that a child not over fourteen years shall not be punished for an offence and Section  15 provides that the court shall reduce the scale of punishment provided for the offence by one half for a child over fourteen years but less than seventeen years of age, and for a person over seventeen years but not over twenty years of age, the provision of Section  76 authorizes the court to exercise its discretion to reduce the scale of punishment by one third or one half. In practice, the court has always exercised its discretion to reduce the scale of

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punishment; therefore there has never been a sentence which imposes capital punishment on a person under eighteen years of age; (c) According to paragraph 2 and 3 of Article 18 of the latest amended Penal Code, 2003, capital punishment and life imprisonment shall not be ­imposed on a person under eighteen years of age and the said punishment shall be reduced to fifty years of jail term; (d) On the period of time to bring the arrested person to court, Paragraph 3 of Article 9 of the Covenant has used the term “promptly,” the Thai Criminal Procedure Code authorized the inquiry official to detain the accused for 48 hours before bringing the person to court. If the inquiry has not been completed he can further detain the person for seven days. This is not in line with the Covenant. Therefore, Thailand has made a declaration to explain that Thailand shall follow the commitment under this provision in the manner the law of Thailand so provides at the moment; (e) Paragraph 1 of Article 20 provides on prohibition of propaganda for war, which Thailand made an interpretative declaration that Thailand shall interpret the term “war” to be a “war” under international law, which does not include the war as a result of self defense.”5 This was to ensure that the country would “adjust the commitment under the Covenant to be compatible with the Thai domestic laws, thus no need for Thailand to revise its laws to fully follow the commitment. For the said reason, it is not necessary to submit the matter of accession to the Covenant to the National Assembly for approval as provided for by Section 181 of the Constitution…1991.”6

Reporting Process

The initial report took some time to prepare. It was sent to the Human Rights Committee and was published by the un in 2004. Basically, the report responded to each provision of the Covenant individually. So far, only one report has been considered by the Committee which issued its recommendations in 2005 after discussion with the country’s representatives.7 The second report was completed and was sent to the Committee recently. Implementation Measures The intial report conveyed the following: 1.

The 1997 Constitution and a variety of laws on political participation r­ esponded to Article 1 of the Covenant. For instance, Section 57 of the Constitution stated:

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2.

3.

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 person shall enjoy the liberty to unite and form a political party A for the purpose of making political will of the people and carrying out political activities in fulfillment of such will through the democratic regime of government with the King as Head of the State as provided in this Constitution.8 Article 2 was reflected in the Constitution, particularly Section  30 on non-discrimination: All persons are equal before the law and shall enjoy equal protection under the law. Men and women shall enjoy equal rights. Unjust discrimination against a person on grounds of the difference in origin, race, language, sex, age, physical or health condition, personal status, economic or social standing, religious belief, education or constitutionally political view, shall not be permitted. Measures determined by the State in order to eliminate obstacle to or to promote persons’ ability to exercise their rights and liberties as other persons shall not be deemed as unjust discrimination under paragraph three.9 The broad grounds for action against discrimination in this Constitution were innovative; for instance, the grounds included the component of health condition. The report also noted instances of discrimination against homosexuals.10 On implementation of Article 2, the question of marriage between Thais and non Thais was resolved by a case before the Supreme Court which vindicated the right of all Thais to marry anyone (including illegal aliens), thus obliging the authorities to register the marriage.11 There were various issues pertaining to Article 3. The country had witnessed the abolition of the power of parents to sell their children. And the power of the husband to sell his wife. The commitment to equality between men and women was seen in the country’s accession to the Convention on the Political Rights of Women (1953) and the cedaw. Two reservations to the cedaw remained, however. There were some discrepancies in family law such as the bias of the law in favour of men in regard to the grounds for divorce.12 Generally, there was increasing participation of women in many walks of life.13 On employment, there remained discrepancies on the types of work available to women, but some measures to ensure equality of treatment were also visible (such as through the Labour Protection Act 1998 ­stipulating the right to protection from dangerous work and sexual ­harassment, and permitted leave for pregnant employees).14 The issue of violence was a concern. The police had issued a regulation on the

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5. 6.

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treatment of abused women (1998) and there were government backed campaigns to raise consciousness of the issue.15 On another front, there remained a difficulty in the law which obliged women to use the name of the husband on marriage. This was compounded by the prefix attached to the title of married women (at the time, a married woman had to change the prefix from Nangsao (Miss) to Nang (Mrs.))16 With regard to the sexual exploitation of children, there were various laws, such as the Prevention and Suppression of Prostitution Act 1996 and the Prevention and Suppression of Woman and Child Trafficking Act 1997, to counter the phenomenon. Related to these was the presence of a national plan of action.17On another matter, there remained inequality in relation to the acquisition of Thai nationality between a Thai spouse and a foreigner, with Thai women being disadvantaged as more conditions were imposed on Thai women who married foreigners (than Thai men who married foreigners).18 A host of issues was raised in regard to the relationship between Article 4 and Thailand, particularly the presence of various emergency laws such as the Martial law Act 1914 and the (then) Administration under Emergency Situation Act 1952 (which was later superseded by an Emergency Decree). However, at the time of the report, there was no state of emergency.19 The country was guided by the 1997 Constitution to comply with the Covenant in the sense that restrictions on rights could not undermine the substance of the rights.20 Freedom of expression, assembly and personal security were guaranteed by the Constitution, with various parameters concerning limitations on the freedoms.21 The Constitution responded to Article 5 by highlighting the democratic nature of the country.22 The report then delved into a range of issues concerning the right to life under Article 6 which was guaranteed by Section 31 of the Constitution. Abortion was illegal, subject to some exceptions. In relation to the use of weapons by the authorities and impliedly the issue of extrajudicial ­killings, law enforcers remained accountable under the law, with the Criminal Code guaranteeing remedies.23 Statistics of such practices were provided in the report,24 as in Table 11.

Being a Communist was still illegal at the time, with consequences.25 On a­ nother front, a particular problem was killings carried out by the authorities vis-à-vis drugs suspects.26 The country retained the law and practice of capital punishment for the most serious crimes such as “offences regarding the national security, h ­ omicide, and offences resulting in death, such as incendiary or rape. It is also meant for the

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The Covenant on Political Rights and Thailand Table 11

Statistics of extrajudicial killings.

The statistics of extrajudicial killings, the Office of the Attorney General: Outcome of consideration 2. Prosecution 3. Pending 4. File Returned 5. Further Handling Total

2 5 22 1 46

1 23 11 69

Source: Office of Attorney General, Bangkok. (as in Thailand’s initial report to the Committee) UN Doc.CCPR/C/THA/2004/12 (August 2004).

offences of drug trafficking.”27 Lethal injection replaced execution by gunfire. In 1999, there were 46 persons on death row.28 On the issue of genocide, the country was a party to the treaty on its prohibition.29 In relation to the right to life, pardons, amnesties and reduction of sentences were possible.30 There remained an issue concerning the law which allowed capital punishment for persons over 17 years of age, while the cases concerning juveniles came under the juvenile justice system without use of capital punishment.31 For pregnant women, the sentence of capital punishment was suspended until after child’s delivery.32 A number of offences against the Kingdom, such as insurrection (Section  113 of the Criminal Code), also provided grounds for capital punishment.33 7.

8.

The prohibition against torture, per Article 7 of the Covenant, was found in the Constitution.34 Monitoring was carried out by the National Human Rights Commission.35 Other provisions countered the use of illegally obtained evidence and offered compensation to the victims.36 On Article 8, the country abolished slavery in 1905. This was further guaranteed by the Penal Code and other laws and related measures.37 In ­practice, there were inherent difficulties in relation to sexual exploitation, inviting countermeasures, including a new anti-prostitution law 1996 protecting under 18’s from exploitation and punishing customers.38 With regard to child labour, the main law on the subject was the old Labour Protection Act with a minimum age of employment set at 13. The problem remained extensive.39 Various measures, including access to education, livelihood training, prosecution of employers and increased labour inspection, were being adopted to protect children.40 There was

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10.

11. 12. 13.

14.

15. 16. 17.

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also a provision against forced labour, per the Constitution, while other laws might also be linked with elements of forced labour, e.g. on military service.41 With reference to Article 9, various guarantees were offered in Thai law, including under the Constitution. These included the right to be informed of the reason of arrest, the right to meet a lawyer in private, the right to receive prompt medical treatment, the right to be tried promptly within a reasonable period of time, and the possibility of bail.42 On Article 10, the guarantee of humane treatment was offered by various national laws, for instance, the need for a court warrant to detain someone (except in various emergency situations), special law and facilities for juvenile justice, rehabilitation of drugs addicts, and no corporal punishment for children. There were special provisions concerning military courts.43 In regard to Article 11 on civil debtor, there was no specific law on the matter in Thailand.44 On Article 12, freedom of movement was recognized by the Constitution but it might be regulated by immigration and other laws.45 With regard to Article 13, there were various laws and regulations such as the immigration law and Deportation Act 1956 as amended. The ­solutions for persons seeking refuge depended on which groups were seeking entry into the country, with emphasis on voluntary repatriation as a ­solution.46 There were specific measures concerning Lao and Vietnamese groups.47 Article 14 was reflected in the Thai Constitution. A variety of courts, including the Constitutional Court, the Administrative Court, and other courts, was present, with an open judicial process, the presumption of innocence on the part of the accused, the right to prepare a defence, the right against self-incrimination, the right to trial without delay, special provisions for juveniles, the right to appeal, help for victims, and non bis in idem.48 The principle of non-retroactive legislation under Article 15 was respected in Thai law.49 Likewise the right to be recognized as a person before the law: per Article 16 of the Covenant.50 The right to privacy under Article 17 was found in the Constitution and other laws. In 1977 the Official Information Act was passed to enable the public to access public records.51

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18. On Article 18, the liberty to profess a religion was inherent in the Constitution and the country was pluralistic on the matter.52 19. The right to freedom of expression under Article 19 was part of the Constitution. However, there could be various constraints under special laws, such as Martial law.53 20. The response of the report to Article 20, for which there was an interpretative declaration, noted that propaganda for war was illegal in the country. Likewise hate speech.54 21. While the right to peacefully assemble per Article 21 was found in the Thai Constitution, various constraints could be possible under various laws, e.g. the Land Traffics Act 1979.55 22. On freedom of association, the Constitution paralleled Article 22 of the Covenant. Trade unions were regulated by the Labour Relations Act 1975. Public enterprises could form associations under the Act on Relations of Public Enterprises 1991.56 23. The report continued by stating that there was much commitment to the family in Thailand and this responded to Article 23 of the Covenant. The National Economic and Social Development Plan 1997–2001 reinforced this. There was also emphasis on helping families living with hiv.57 Various contentious issues remained in regard to acquisition of nationality, use of name and land holdings.58 24. Protection of the child under Article 24 was reflected in the Constitution, particularly Section 30. There were provisions for children in difficulties, such as street children, juvenile justice, sale of children, and the nationality issue concerning children.59 25. The right to vote was entrenched in the Constitution and paralleled ­Article 25 of the Covenant. Other modalities for public participation in national affairs included these modalities: 627. Right to participate in the conduct of public affairs, directly or through their freely elected representative, has increased the participation of the people in politics and the government to a greater extent as follows: (a) 50,000 people with voting rights are able to submit a motion to propose laws on rights, liberties and basic principles in the forming of state policies; (b) 50,000 people with voting rights are able to submit a motion to remove the Prime Minister, Ministers, members of the House of Representatives, senators, President of the Court or the Attorney General, if there is substantial proof of corruption;

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(c) Vote in a referendum when the Cabinet seeks the opinion of the people; (d) Increase the participation of the people in the local government and provide self government to the people without affecting the interests and unity of the country as a whole, under the following conditions: Members of the local assembly shall be elected. However, the head of the sub district and head of the village can hold their positions in the  Sub District Administration Organization until there is an election of the members of the Council of Sub District Administration Organization; Local administrators can either be directly elected or be approved by the local legislatures; Provinces that are ready shall have local governments as seen appropriate by the Government and the National Assembly; Local mechanisms shall be independent with regards to authorities, finance, taxes, including staff and personnel management; People in local governmental areas shall have the right to remove the administrators and members of the local assembly; Half of the population may enlist to propose local legislation; Local government organizations shall have the duty of maintaining and preserving arts, culture, customs, local wisdom, education and natural resources as well as environment.60 Yet, women’s participation in politics was somewhat slow.61 26. Article 26 of the Covenant was found in the Constitution.62 27. The minorities issue under Article 27 had implications for Thailand and was reflected in the Constitution’s concept of human dignity and community rights. The report added that status was accorded to those who had been in the country for a long time.63 Dialogue and Recommendations The dialogue with the Human Rights Committee took place in Geneva in 2005 and the following highlights emerged from the concluding observations: 1.

The Committee commended the new Constitution 1997 which had many of the rights and freedoms found under the Covenant. It also

The Covenant on Political Rights and Thailand

2. 3. 4. 5. 6. 7. 8. 9.

10. 11. 12. 13. 14. 15. 16. 17. 18. 19.

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welcomed, among others, the setting up of the National Human Rights Commission.64 It expressed concern on the various declarations made by the country at the time of accession and said that they amounted to reservations needing withdrawal.65 It called for incorporation of the Covenant into national law.66 It called for follow up of the recommendations of the National Human Rights Commission, in accordance with the Paris Principles concerning the need for independence of national commissions.67 It raised the issue of extra-judicial killings with a call for effective counteraction.68 It recommended equalizing the grounds for divorce.69 It underlined the violence issue ranging from domestic violence to the need to establish hotlines, medical and psychological support, and trained law enforcers.70 It commented on the presence of emergency laws, particularly the challenge of non derogable rights and the interface with emergency laws, enforcement and impunity.71 It clarified that drugs related offences should not be seen as justifying the death penalty – they should not be seen as the most serious crimes which might otherwise justify the death penalty and invited review of the law on this issue.72 It expressed its concern on the use of force by the authorities on various occasions and the resulting impunity of officials.73 It raised the issue of prison conditions and practices, such as the overcrowding, use of shackles and solitary confinement:74 It called for the screening of asylum seekers to facilitate admission into the country, protection of refugees and respect for non-­refoulement.75 It raised the issue of media freedoms in the face of security laws.76 It underlined the need to protect human rights defenders.77 It voiced its concern over the issue of trafficking and sexual exploitation, with Thailand as a source, transit and destination country.78 It called for effective action against child labour.79 It advised on the need to tackle statelessness, including the need for birth registration and naturalization.80 It expressed its concern on the treatment of migrant workers and the need for protection and access to social services and education.81 It advocated respect for the rights of minorities, including protection from forced evictions and respect for their languages.82

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Follow-up Given the discussion on several issues between the Committee and the Thai delegation which needed clarification, subsequent to the meeting in Geneva, the Thai authorities sent an additional report in response to the Concluding Observations of the Committee in September 2006. It gave details of the various security laws such as the Martial Law Act 1914, the repeal of the Act relating to Public Administration in Emergency Situation 1952 and the enactment of the Emergency Decree on Public Administration in Emergency Situation 2005.83 It should be noted that the old anti-Communist law was also repealed around that time. In reality, the situation in Southern Thailand was beginning to worsen from 2004 with increasing violence. The laws above were thus being increasingly applied in the region. The Southern Border Provinces Peacebuilding ­Command was in charge of administration of the law.84 Accordingly, in the additional report, the question of responsibility and the implication of impunity were explained on the basis that the powers of law enforcers did not exceed “necessity”85 and their use was interlinked with the possibility of the injured persons claiming compensation under the Tortious Liability of Officials Act.86 On another front, reform of the Criminal Procedure Code in 2004 rendered forced confessions obtained by law enforcers inadmissible in court.87A lot of compensation had been also paid to parties affected by negative actions of the authorities, such as those affected by the Tak Bai incident where a number of arrested persons in the South died from suffocation when transferred by cramped transport provided by those in uniform.88 In regard to the labour and trafficking issue, information was provided on various cases of action against traffickers and to help the victims. For instance: On 14 September 2004, officials of the Ministry of Labour….searched a garment factory….in Dindang District, Bangkok as they were informed of illegal alien employment and conduct which may constitute the offence of human trafficking. As a result of the search, they found 18 Laotian women workers between 17–18. On 15 September 2004, the Ministry of Labour authorized labour inspectors to lodge a complaint against the employer for violating 7 offences of the Labour Protection Act b.e. 2541 (1998): employing a child under fifteen years of age; failing to notify a labour inspector regarding the employment of children within fifteen days; dialing to pay overtime pay, holiday pay, holiday overtime pay to an employee, failing to pay wages at the specific time; and paying wages lower than the minimum wage rate. The Ministry of Labour also sought cooperation from the Laotian embassy to provide an interpreter for the

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employees and a lawyer to facilitate the prosecution of the employees at the Central Labour Court. At present, the Central Labour Court has passed a judgement ordering the employer to pay the amount according to a plaint.89 Second Report Since the initial period above and the additional report, the country has been preparing its second report (periodic). Importantly, two events have been catalytic. First, a coup took place in 2006 and this gave birth to a new Constitution in 2007. The draft second report was finished after the latter came into existence. It was, however, blocked by some quarters of the administration who wished to see reference in the report to the fact that the new Constitution did not provide for an appellate court for those convicted of a political offence by the Political Offences Chamber attached to the country’s Supreme Court set up by the 2007 Constitution. Second, in 2014 another coup took place, with additional implications for human rights and related constraints. The said draft report has now been submitted to the new government and has been approved for forwarding to the un. Examples of the contents of the second report may be excerpted as follows in two parts: response to the Committee’s recommendations, as published in Table 12, then progress since the initial report: A Responses Before addressing each Article of the Covenant, the second report starts by responding to some of the recommendations of the Committee (numbered below) in relation to the previous report in the following format, particularly to indicate follow-up since the initial report:90 Table 12

Responding to the human rights committee iccpr.

• Withdrawal of Interpretative Declaration (No.7) • Adoption of the iccpr principles in internal/domestic laws (No. 8) • Implementation on Rights Protection by the National Human Rights Commission (No. 9) • Inquiry and legal proceedings against offenders in human rights violation incidents; Training for police, military and corrections officers to enhance their knowledge and understanding about human rights principles ­according to the international standards; and, Establishment of an ­independent civil organs to examine complaints (No. 10) • Revision of laws pertaining to grounds for divorce (No. 11) • Eradication of Domestic Violence (No. 12)

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Table 12

Responding to the human rights committee iccpr (cont.).

• Implementation of Article 4 of the Covenant, and Informing State Parties upon Announcement of an Emergency Situation (No. 13) • Review of Capital Punishment (No. 14) • Rights of Detainees, Inquiry and legal proceeding against officers who commit malfeasance, and Remedy for Victims (No. 15) • Condition of detention places and prisons; Abolition of the use of instruments of restraint, and Special protection for youth in conflict with the law (No. 16) • Non refoulement of persons at high risk of being tortured, and Case of the Hmongs in Petchabun Province (No. 17) • Measures for the Prevention of Violation against the rights and freedom of expression of media practitioners and journalists (No. 18) • Protection of human rights defenders and community leaders from disturbances and assaults (No. 19) • Human Trafficking and Measures to pursue legal proceedings and punish offenders (No. 20) • Countering the use of Child Labour, and Protection of Child Labour Workers and their Educational Rights (No. 21) • Measures to grant nationality to stateless persons, birth registration for children of ethnic minority groups including the highlanders and migrant children; and elimination of negative effects on the rights enshrined in the Covenant (No 22.) Source: Author’s own table derived from UN Doc.CCPR/C/THA/2(March 2015).

In response to the structure above, the report provides this information: 1. 2.

3.

The time frame for the report covers the situation till 2008.91 Withdrawal of two of the declarations is the result of law reform raising the age for capital punishment from 17 to 18 thus complying with Article 6(5) and access to the courts within 48 hours for arrested persons thus complying with Article 9(3).92 Those two declarations (on capital punishment and children, and on access to the courts without delay) were withdrawn in July 2012. After referring to the adoption of the Covenant’s principles in Thai law and the work of the National Human Rights Commission, the report addresses the issue of impunity under the security laws by referring to some cases as follows:

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Case of Tak Bai incident in 2004 18. The case has been processed under both criminal and civil procedures. The Songkhla Provincial Court announced their inquest ruling in 2009 that 78 individuals died of suffocation while in custody of state officials who were performing their duties. The Court also observed that the officials did not use armed weapons against more than 1,000 protestors gathering outside the Tak Bai police station in their attempts to disperse the crowd, but only water cannon. The protests then began to turn into riots, with the protestors damaging the government’s properties, despite many attempts of negotiations. The Court therefore ruled that the exercise of state authority in the dispersal, the custody of demonstrators and the transportation of those held in custody were conducted in conformity with their duties based on the difficult and constrained situation. After considering the outcome of the post-mortem inquest, the Public Prosecutor ordered a suspension to the inquiry. 19. As for the civil proceeding, the families of those who died and those who were injured and made disabled sued the State authorities for compensation. However, the civil compromise was subsequently concluded by the State authorities and the families of the injured persons. This entitled the families to receive a civil compensation in the total amount of 48.9 million Baht (1.63 million usd). It should also be noted that the prosecutor decided to withdraw the case and drop the charges against 84 protestors in an attempt to promote peace and reconciliation in the three southern border provinces. Case of Krue Se Incident 20. The measures adopted by the State authorities in the Krue Se incident are to be seen in the context of a series of previous incidents and escalating violence which had claimed the lives of hundreds of innocent civilians, both Buddhists and Muslims, in the three southern border provinces. After stealing government weapons, killing and wounding government officials and destroying government properties, some of the perpetrators sought refuge in the Krue Se Mosque. Government officials, Muslim religious and community leaders and the families of the perpetrators, had tried to negotiate a peaceful surrender, and tear gas was also used, but to no avail. Finally, after a nine-hour siege by the security force, the officers decided to use gunfire against the perpetrators inside the Mosque so as to protect the lives of many more innocent people. Key national and provincial religious leaders, including the then Chairman of the Central Islam Committee of Thailand,

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publicly expressed their ­understanding of the situation facing the authorities in the incident, which could not be avoided. 21. In 2009, after the Attorney General issued a non-prosecution order on the grounds that the force used was reasonable given the tense circumstances. These circumstantial factors also included the large inflow of public crowds surrounding the Mosque, and the risks that they might get hurt, coupled with the possibility that instigators may be intermingling in the crowds. In the aftermath of both the Tak Bai and Krue Se Mosque incidents, the National Reconciliation Commission set up independent investigative committees and in both cases, the Commission concluded that the officials had no ill intent to cause the deaths and the operations were undertaken in good faith, but it was certain that there must be lessons learned in riots control. Case of Deaths during the drugs suppression period 22. Thailand has adopted strong measures on drugs prevention and suppression, considering that the drugs problem had seriously affected the ­country’s economic and social security. During February–April 2003, there were 2,604 cases of deaths, bringing the total death toll to 2,873 persons. However, the results from the inquiries conducted by the Inquiry Officers could not point to anyone as offenders, and the legal evidence and witnesses could not clearly identify whether or not those deaths were the results of the drugs suppression operation, or if the deaths had been caused by the acts of public officials or other people in general, or whether the cases were drugs related or were merely general criminal cases. Therefore, the inquiries were ordered suspended, according to Section 140 of the Criminal Procedure Code. However, the legal implication is that the cases are not final, and further investigation and inquiries to identify and arrest the offenders are possible, given that legal proceedings can be resumed at any time within the time limit of 20 years.93 In regard to equality between the genders, the law, particularly the Civil  Code, has been improved to establish the same grounds for divorce for men and women, and there is also now criminalization of marital rape.94 On the issue of domestic violence, the report notes the 2007 Domestic Violence Act and various shelters offered to victims.95 In relation to action against impunity under the security laws, a number of case statistics are given indicating a range of misconduct by law enforcers.96 Large sums have been given to victims of crime as compensation.97 Instruments of constraint are, in principle, prohibited.98

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9. There is a new Juvenile Justice Law 2010.99 10. With reference to asylum seekers, particularly from Myanmar and Laos, temporary refuge is accorded, as well as safe return home.100 11. The law on freedom of expression has improved, with a new law in 2007 abolishing the need for editors to request permission to publish.101 12. In regard to human rights defenders, the country is intending to consider ratifying the cpaped.102 13. There is a new law on human trafficking 2008, following the un Protocol against human trafficking.103 14. On child labour, various measures, such as more monitoring and supportive network, are being implemented,104 15. The nationality law was adjusted in 2008, restoring Thai nationality to those whose nationality had been revoked by an earlier executive decree as well as granting Thai nationality to a group of persons who had resided in Thailand for a long time.105 16. Emphasis is now on nationality verification of migrant workers.106 17. On minorities, the issues of nationality, free movement, culture and access to community resources are being addressed.107 B Progress The report then provides an article by article response to the Covenant: 1. 2. 3.

4.

5. 6. 7.

In regard to implementation of Article 1 the Covenant, the linchpin is the 2007 Constitution.108 With regard to Article 2, there are some new laws such as the Act for Promotion and Development of Life of Persons with Disabilities 2007.109 With respect to gender equality under Article 3, the situation is improving with the new family law equalizing the grounds for divorce. Also the 2008 nationality law offers Thai nationality to children born to Thai fathers outside marriage.110 On Article 4, there has been a shift from the old laws to the new internal security act, bearing in mind international standards such as the un standards on use of force and firearms by authorized law enforcement officers.111 In respect of Article 5, some limitations on rights are permitted under the 2007 Constitution.112 On Article 6, the country has abolished capital punishment for under 18’s.113 Regarding Article 7, the country is a party to the cat. The issue is also covered by Section 32(2) and (5) of the Constitution.114

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8.

Various laws, such as the 2008 anti-trafficking law, have responded to ­Article 8.115 Article 9 is integrated into the Constitution and various other laws.116 Article 10 is paralleled by the Constitution. There is a special Juvenile Justice system.117 Help for women prisoners is improving.118 Response to Article 11 is as in the initial report.119 Article 12 is reflected in the Constitution.120 Article 13 interplays with various laws and policies such as the Immigration Act 1979 and the Working of Aliens Act 2005, with the country granting to victims of human trafficking permission to stay in the country.121 The Constitution and other laws guarantee the rights under Article 14. Amendment of the Criminal Procedure Code in 2008 has led to the following measures in relation to access to justice: provision of interpreters, adequate time for case preparation, expeditious courts hearings and the right against self-incrimination.122 The report claims that the incidents of human rights violations in Southern Thailand have declined.123 Article 15 is found in the Constitution.124 Article 16 interrelates with the status of migrant workers. The thrust of the policy is now nationality verification, after which those who are able prove their nationality have access to employment and social security in Thailand.125 On Article 17, the report refers to the Constitution and various other laws on this matter, such as the Domestic Violence Act prohibiting exposure of victims’ identity publicly. Also the Computer Crimes Act 2007 has provisions against hacking.126 The Constitution and various projects respond to Article 1, e.g. financial support for Islamic schools (Pawnaw).127 Various laws, including the Constitution, the Thai Public Broadcasting Service Act 2008, and the Act on Public Radio and Television Broadcasting Organisation of Thailand 2008 interplay with freedom of expression under Article 19. However, some constraints are visible.128 The issue of lese majeste is dealt with as follows in the report: 153. As a liberal democratic society, Thailand takes seriously the views expressed about the so-called lese-majeste law in Thailand, which is in fact part of Thailand’s Criminal Code, not a special law. The Government has thoroughly reviewed the situation concerning the lese-majeste law and has found it to still be necessary and relevant in Thailand’s context. This is because under the Thai Constitution, the

9. 10. 11. 12. 13.

14.

15. 16.

17.

18. 19.

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monarchy is one of the country’s principal institutions. Therefore, lese-majeste is regarded as an offence against the security of the state. 154. The Computer Crimes Act b.e. 2550 (2007) was enacted so that the authorities can more effectively deal with a range of criminal and harmful activities committed via computers and the internet, ­including threats to national security, lese-majeste, defamation, hacking and pornography. Although this law empowers the authorities to suspend access to a website temporarily, a court approval is required before any such action can be taken.129 Article 20 is espoused also by the Constitution, together with action against the promotion of hatred.130 Freedom of assembly under Article 21 is found in the Constitution.131 Freedom of association is found likewise in its linkage with Article 22. There is also an intention to ratify more ilo treaties.132 On Article 23, the right to marry is guaranteed in Thai law.133 On Article 24, there is now the Act on Promotion of National Child and Youth Development be 2550 (2007).134 Article 25 on elections is reflected in the Constitution.135 Article 26 is found in the Constitution.136 Article 27 is reflected in the concept of community rights.137

As this (second) report has yet to be considered by the un, it is somewhat premature to predict how the Human Rights Committee will respond and comment on the progression since Thailand’s first report. Yet, some features of the implementation process will doubtlessly give rise to much discussion and they are inevitably linked with the challenges identified below. Key Challenges Incorporation/Implementation One of the issues raised by the Committee in the first phase was to what extent the Covenant could be invoked directly in Thai courts. The position is the same as in regard to the other treaties: the Thai system is dualistic. However, it is interesting to speculate to what extent the courts might use the Covenant to help guide interpretation of the law even if the Covenant (and other international instruments) is not automatically applicable. This has happened in some court cases.138 By nature, implementation measures should also be interdisciplinary. While several laws have been improved, the issue of holistic implementation through a variety of measures, such as case enforcement, quality personnel, resource commitment, accessible mechanisms, accountability and remedies,

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is still a challenge. Also some of the new laws, e.g. the new Emergency Decree which excludes the jurisdiction of administrative courts where there are complaints against officials and use of Section 44 of the interim constitution – thus entrenching impunity, are not necessarily compliant with international human rights standards. Declarations/Reservations It is salutary that two of the declarations have now been withdrawn. As for the other two declarations (Articles 1 and 20), the declaration on the issue of self determination is partly due to the fear of separatism and secession in Southern Thailand. However, in international law, self determination does not necessarily imply secession, and with this understanding the declaration can be seen as redundant. As for the other declaration on Article 20, it is interesting that the cerd Committee advised more recently that incitement to racial hatred must be prohibited by law, as seen in a later Chapter.139 There is still no ­explicit law on the subject in the country, and the need for a law on this issue is self-evident. The Protocols Attached to the Covenant are two Protocols – one on the possibility of individual communications to the Committee where there are no local remedies and the other on the abolition of the death penalty. Thailand is not a party to either Protocol. However, some academic inputs and seminars have voiced the benefits of accession and the door remains wide open.140 Constraints on Civil and Political Rights The biggest challenge is in regard to the array of laws and practices which open the door to limitations on these rights, in particular under the chapeau of national security, such as Martial Law and emergency legislation or decree. It is interesting that the Supreme Court President has issued guidelines to help  ­ensure that application of the new Emergency Decree conforms with the rule of  law, e.g. the need for expeditious access to the courts for those apprehended by the authorities.141 Similar guidance is needed for the Martial law. Related issues include constraints on freedom of expression, peaceful assembly and association and these are closely interwoven with the narrowing of political choices. As will be seen below in recent examinations of the Thai situation ­under the other treaties such as the cat and icescr, the broad ­application of the law on lese majeste has led to many comments from the international community concerning its impact on political space

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in the c­ ountry. Constraints on expression, assembly and association are also pervasive. Particularly after the demise of the 2007 Constitution, with the toppling of the elected government and the setting up of a uniform-backed government in 2014, new practices such prohibitions on demonstrations and the calling in of opponents for “attitudinal adjustment” have emerged. Exceptionalism seems to be on the rise with the rights themselves increasingly relegated to the periphery. Access to Justice While it is true that the country now has a variety of courts, access by the poor or disadvantaged is often difficult. The least costly and most accessible is the administrative court. Under the 2007 Constitution, an innovation was that individuals could also take cases directly to the Constitutional Court. The court has interpreted Article 68 of the Constitution to imply that this can be done without having to seek the approval of the Attorney General.142 The need for a variety of courts and mechanisms accessible to people at large is essential for the Rule of Law. It also implies the need to strengthen the quality of the courts as well as national human rights institutions such as the Human Rights ­Commission. The key issue from the 2014 period has been the use of military courts to try civilians for security related offences. Until the early part of 2015, there was also no possibility of appeal. Also the judges in such courts are not civilian judges nor are they trained in the manner of the latter. Use of Force by Law Enforcers The cases of use of force (e.g. Krua Sae, Tak Bai incidents) are well known.143 It is open to debate to what extent they are proportionate to the circumstances and to what extent the acts done allegedly in the performance of official duties are intra vires or ultra vires. What is evident is that when the damage is done, it is very difficult to prosecute or take action against officials. The local tendency is for the authorities to “pay up” rather than “punish.” The issue of accountability has been responded to in an all-too-weak manner, to date. This remains a major challenge for the country and requires political will to overcome negative undercurrents. National Security Laws, Derogations The national security laws are aplenty. One issue is to what extent the situation of emergency is declared to the un under the Covenant per Article 4. This happened at the beginning of 2010 before the clashes of May of that year between demonstrators of different colours and uniformed authorities.144

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However, the three month extension of the application of the Emergency decree has ­generally been done without informing the un. This is also an area where compliance with international obligations is essential and transcends the fleeting nature of governments in the country. Death Penalty While the abolition of the death penalty for under 18’s is welcome, the law persists in perpetuating the death penalty. The advice from the Committee that drugs related crimes are not serious enough offences to fall within the permissible parameters of the death penalty in international terms has yet to be heeded. This is also an area where recommendations from the international community to Thailand under the Universal Periodic Review (upr) at the un Human Rights Council to abolish the death penalty have been rejected by the country.145 Yet, on a more salutary note, the country’s newest human rights ­action plan advocates its abolition and should be followed through.146 Detention and Prison Conditions Some positive developments on this front include the new Juvenile Justice law of 2010 which obviates detention of minors and uses a diversion system.147 With regard to shackles, there is now an attempt to do away with this instrument of constraint but it has to be made more general in Thailand. The ­possibility of magnetic bracelets is being discussed.148 Violence Violence rears its head in many forms. The Southern provinces suffer daily violence despite the flurry of laws available to curb it. It is a logical to invite more action to tackle the root causes of violence, particularly the age old disconnect between the central authorities and the local people and the need for more participation by the latter. As for domestic violence, while there is a new law on the subject, it targets mediation and counseling rather than sanctions against abuses. The message from the international community inviting follow up is also clear: sanctions are also needed.149 Gender Gender equality has come a long way, at least in law. There are now few areas of  discrimination left on the books. The family law provisions are now (almost) equal, such as in relation to use of names and divorce grounds.150 However, de facto, there is some way to go particularly to enable women to access the political echelons of power.151 Of late, issues concerning sexual

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orientation and gender identity have come to the fore more openly, in particular the treatment of transgendered persons. In a key case, the administrative court has ordered the uniformed authorities to change the form used for military­conscription which classified such persons as mentally ill.152 The newer form now uses the description “gender different from that at birth,” although the English translation “gender identity disorder” is still problematic. The active role of the country’s national human rights commission on such issues is appreciated. Treatment of non-Thais While the country has generally been hospitable to foreigners, there remains a challenge concerning the treatment of some non-Thais, such as asylum-­seekers and migrant workers. In recent years, the outflow of Rohingyas from Myanmar due to discrimination and violence has raised eyesbrows in the r­ egion and beyond, and this tested the reception/asylum policies of neighbouring countries such as Thailand.153 In 2015 the asylum issue became more complicated with the arrival of Uighurs in the country and the deportation of some back to the country of origin.154 On another front, the nationality verification of ­migrant workers has worked to some extent, but many still fall outside its web and there are middlemen ready to exploit them along the way.155 The need for protection of asylum-seekers and migrants, as well as the need for more measures to counter the spate of human trafficking and smuggling related to these persons, requires an interagency response coupled with public participation both to prevent violations and to offer protection and assistance. Ethnic Groups A more comprehensive response is needed to uphold the rights of the various  ethnic groups in the country, including their enjoyment of the whole range of rights. Despite liberal policies on some fronts, the issue of nationality still affects stateless hill tribes. Some court cases, such as the Mae Ai case where the administrative court restored Thai nationality to those stripped of such nationality by officials, have shown the positive role of the courts in ­protecting the rights of hill tribes, including those whose Thai nationality has been withdrawn and in restoring that nationality.156 A number of hill tribes people have not yet been given documents to confirm Thai nationality, while ­others have not yet been granted nationality; these cases require more effective follow up. With regard to the Muslim population in the South, while mother tongue education is allowed to some extent, there is a long way to enable them to participate in local administration and government.157 The

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issue of the environment and the resulting forcible displacement of ethnic groups from forest areas poses a continual challenge; it manifests itself clearly in the monitoring under another Convention – the cerd, to which the study now turns.158

1 2 3 4 5 6 7 8 9 10

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12

The Covenant has 53 articles in total. Thailand is not a party to its Protocols. For developments, see: www.ohchr.org. For the two Protocols, ibid. In particular, Article 4 of the iccpr. See General Comment on freedom of expression, No.34 (2011), supra note 1. Initial Report, Thailand: un Doc. CCPR/C/THA/2004/12 (August 2004), para. 3. Ibid., para. 4. Concluding Observations, CCPR/CO/84/THA (July 2005). Supra note 5, para. 8. Ibid., para. 24. Ibid. 56. In the past, certain governmental educational institutes have set up regulations to bar homosexuals from enrolment. The Ratchabhat Institute, a teacher’s training college, explained the reason for having such a regulation on the grounds that the bodies and minds of homosexuals cannot appropriately carry out duties of a teacher. However, since the promulgation of the 1997 Constitution, there have been calls for repudiation of such a prohibition because it is considered to be a discriminatory and contrary to principle of human rights. 57. Therefore, such a prohibition under the said regulation was repealed. However, there are still two other limitations remaining in the regulation which states that the applicant: (a) Shall not have history of severe mental or neurotic illness; (b) Shall not have other characteristic irregularities which could be considered as an obstacle and shall cause damage to the teaching occupation; (c) Each Ratchabhat Institute is to carry examinations on each individual to see whether he or she has a prohibitive character as mentioned; (d) As for other educational institutes, there is no such discrimination against homosexuals. paras. 56–57. Ibid., para. 58. Supreme Court Ruling 3057/2526 : Somboon Wongkantratorn v Arun Panpukdi, on affirming the right of Thais to marry non Thais even those who entered the country illegally: re The Marriage Registration Act b.e. 2478 (sections 10, 13, 15), http:// deka2007.supremecourt.or.th/deka/web/docdetail.jsp (accessed 22 October 2015). Ibid.: 71. The present Civil and Commercial Code under Section 1516 provides on causes for divorce in an unequal manner. When a woman commits adultery her husband can take action for divorce. On the contrary, if a husband has an extra marital affair with another woman, it is not a cause for divorce in itself. The husband must evidently be

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giving support or recognizing a woman as a wife and only then, would it become a cause for divorce. Therefore, there is an attempt to push for a revision of the law to yield equality. para. 71. Ibid., paras. 72–94. Ibid.: 97. Female labour protection under the said law is stipulated under Chapter 3. The relevant provisions are as follows: Section 38 “The employer shall not allow a female employee to perform any of the following work: (a) Mining or construction which must be performed underground, underwater, in a cave, in a tunnel or passage in the mountain, except where the conditions of work are not hazardous to the employee’s health or body; (b) Working on scaffolding which is 10 metres or more above the ground; (c) Producing or transporting explosives or inflammable materials; (d) Other works as to be prescribed by the ministerial regulations.” 98. Anyhow, under the 7th Regulation of the Ministry of Labour, a provision states that employers are to allow female labours to perform professional or technical works which is related to exploration, drilling, refining; separation and production of petroleum and petrochemicals, as long as the nature or type of the work is not harmful to the health and body of the female worker. 99. Section  39 provides that “The employer shall not allow a female employee who is pregnant to work between 10.00 p.m. to 6.00 a.m.; to work overtime; to work on ­holidays; or to perform any of the following: (a) Work on vibrating machinery or engines; (b) Drive, or travel on vehicles; (c) Lift, carry or bear on the shoulders or head, or pull or push loads that weigh more than fifteen kilograms; (d) Work on vessels; (e) Other works as to be prescribed by the regulations of the Ministry.” paras. 97–99. Ibid., paras. 110–112. Ibid. : 113. Under the Name of Persons Act (1962), Section 12 provides that “a woman shall use the family name of her husband.” However, in principle, there have always been objections in this regard, as it is seen as a limitation of women’s right and a discrimination against women, causing them to be unequal to men, when taking paragraphs 2 and 3 of Section 30 of the Constitution into consideration. 114. Therefore, the Cabinet decided on 18 May 1999 to support a draft bill to revise the Name of Persons Act, so that there is equality between men and women in using family names, which could be that of their own or their spouse. 115. In addition, there was a movement from the National Committee on Promotion and Cooperation of Women’s Affairs, a unit under the Office of Prime Minister, to change the title of a woman because the fact the she has to use the term “Miss” before marriage and must be changed to “Mrs.” once she is married, is considered as

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chapter 4 inequality. A revision of a royal decree on the title of a woman (1917) is therefore proposed to ensure equality. paras. 113–115. Ibid., para. 116. Ibid. : 119. According to the Nationality Act (1992), a foreign man who is married to a Thai woman shall not be able to acquire the Thai nationality. Whereas a foreign woman who is married to a Thai man has a right to acquire Thai nationality. This results in (in)equality in enjoying rights between Thai male and female. 120. Therefore, the Committee for Promotion and Cooperation on Women’s Affairs submitted a proposal to the Cabinet to revise the said law to bring about equality. The Cabinet has later approved the revision of the law and assigned relevant agencies to take further steps. At the moment it is under the consideration of the relevant agencies. The details of which also appear in the report regarding Article 23. paras. 119–120. Ibid., para. 122. Ibid.: 124. Article 29 of the 1997 Constitution recognises and is in line with the commitment under paragraph (1) of Article 4 of the Covenant which provides: The restriction of such rights and liberties as recognised by the Constitution shall not be imposed on a person except by virtue of provisions of the law specifically enacted for the purpose determined by this Constitution and only to the extent of necessity and provided that it shall not affect the essential substances of such rights and liberties. The law under paragraph one shall be of general application and shall not be intended to apply to any particular case or person; provided that the provision of the Constitution authorising its enactment shall also be mentioned therein. The provisions of paragraph one and paragraph two shall apply mutatis mutandis to rules or regulations issued by virtue of the provisions of the law. 125. From the above-mentioned provision of the Constitution, one can see that a violation of the liberty of people shall be under strict limitations for the purpose of keeping the security of the State or public order and good morals of the people. paras. 124–125. Ibid. 126. The right of a person to hold an opinion without any interference including freedom of expression and the right to seek, receive and impart information and data under Article 19 of the Covenant shall be guaranteed and shall not be violated unless it falls under the exemption in Section 37 of the Constitution which states: A person shall enjoy the liberty of communication by lawful means. The censorship, detention or disclosure of communication between persons including any other act disclosing a statement in the communication between persons shall not be made except by virtue of the provisions of the law specifically enacted for security of the State or maintaining public order or good morals. 127. The right to assemble peacefully under Article 21 of the Covenant has been recognized by Thailand under the provision of Section 44 of the Constitution which provides:

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A person shall enjoy the liberty to assemble peacefully and without arms. The restriction on such liberty under paragraph one shall not be imposed except by virtue of the law specifically enacted for the case of public assembling and for securing public convenience in the use of public places or for maintaining public order during the time when the country is in a state of war, or when a state of emergency or martial law is declared. 128. Right of a person to be free from forced labour unless it falls under exemption is also clearly guaranteed by Section 51 of the Constitution which provides: Forced labour shall not be imposed except by virtue of the law specifically enacted for the purpose of averting imminent public calamity or by virtue of the law which provides for its imposition during the time when the country is in a state of war or armed conflict, or when a state of emergency or martial law is declared. paras. 126–128. Ibid.: 129. Thailand has expressed its will to recognize the commitment under this Article since the beginning, as Thailand has made no reservation on this Article when it became a State Party to this Covenant. 130. Accordingly, Article 29 of the present Constitution also provides that the State shall not limit the rights and liberties of a person as mentioned in Article 5 of the Covenant. Furthermore, paragraph 1 of Section 63 provides that: No person shall exercise the rights and liberties prescribed in the Constitution to overthrow the democratic regime of government with the King as Head of the State under this Constitution or to acquire the power to rule the country by any means which is not in accordance with the modes provided in this Constitution. 131. Therefore, should the State or any person takes any action which is contrary to Section 29 and 63, it shall be considered illegal and the State shall exercise its power to cease such an action and those involved shall be held responsible. paras. 129–31. Ibid.: 148. However, in carrying out their duties, police or military officers may fall into a situation where they are forced to commit extrajudicial killings. Should the police commit homicide in order to protect oneself or others, and such an act is considered to be reasonable, that officer would not be charged, but shall undergo a different investigation process, unlike other ordinary homicide cases. This is to protect the people from an unreasonably or disproportionate killing done by governmental officers. 149. Section 148–156 of the Criminal Procedure Code set up guaranteeing measures to ensure the right of the injured person in cases of extrajudicial killings, such as post mortem autopsy and investigation on the cause of death, under Section 150. This shall be conducted by an inquiry officer of the district where the body is found and the provincial health officer or a medical doctor of a health center or a hospital. Once the autopsy is conducted, the inquiry officers shall send the result of the ­autopsy to the public prosecutor, who would submit a petition to the Court of First Instance to carry out the inquest and rule on the cause and surroundings of the death. paras. 148–149. Ibid., para. 152.

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Ibid. The situation was linked as follows: 153. Under Section 22 of the Prevention of Communist Act (1952), cases of extrajudicial killings require the military prosecutor to handle the autopsy and the Judge Advocate General to rule on the result of the autopsy and decide whether to submit the case to court or not. para. 153. Ibid. exemplified by the following: 156. In the year 1997, there was a case of extrajudicial killing by a police officer during the arrest of drug trafficking suspects (amphetamine), whereby 6 suspects were killed at the District of Dan Chang of Suphanburi Province. Police officers claimed that the suspects resisted the arrest and so needed to fire their weapons in self defense. The district inquiry officials carried out the inquiry and the autopsy of the deceased. Subsequently the file of the inquest was sent to the provincial public prosecutor of Suphanburi in order to submit a petition to the District Court to carry out the ­inquest under Section  150 of the Criminal Procedure Code. However, the public prosecutor asked for further inquiry on many issues to allow a clearer picture of the case and to allow more testimony and evidence to be collected for the court’s consideration. Disagreeing with the order, the inquiry official objected the additional inquiry, stating that the public prosecutor has no authority to instruct inquiry officials to carry out further inquiry. The Ministry of Interior has decided to submit the matter to the Office of the Council of State for interpretation, which is in the opinion that the public prosecutor has the authority to hand out such an order. This indicates an attempt to protect the right of the suspects killed by the police officers on duty. This is a form of check and balance between the public prosecutor and the police. 157. The case is in the process of court’s hearing in the District Court of Suphanburi. On the other hand, the special committee of the House of Representatives also carried out an investigation on the case. It could not, however, carry out the investigation in detail for there are no other witnesses apart from the four police officers who carried out the extrajudicial killings. They refused to provide facts and explanations to the committee citing that they are waiting to testify in court. The committee had made a remark on the defects of the law and the practice of the inquiry and the inquest in cases of extrajudicial killings. The remarks consisted of 9 issues which the Ministry of Justice had already incorporated in their revision of the law. paras. 156–157. Ibid., para. 158. Ibid., para. 163. Ibid., para. 164. If the country report meant to imply that Thailand is a party to the 1948 Genocide Convention, this is incorrect. Moreover, the country has signed but not yet ratified the Rome Statute of the International Criminal Court. Ibid., paras. 165–74. Ibid., para. 178. Ibid., para. 180. Ibid., para. 182. Ibid. As follows: Paragraph 2 of Section 31 the Constitution of the Kingdom of Thailand provides:

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A torture, brutal act, or punishment by a cruel or inhumane means shall not be permitted; provided, however, that punishment by death penalty as provided by law shall not be deemed the punishment by a cruel or inhumane means under this paragraph. and 185. The punishments under Section 18 of the Penal Code are death, imprisonment, confinement, fine and forfeiture of property. Thailand’s punishment does not include flogging or hard labour. 186. In addition, the Penal Code provides for heavier punishment of a crime that is of cruel nature, such as the killing of a person by torturing or cruelty (Section 289 (5) of the Penal Code). paras. 184–186. Ibid., para. 187. Ibid. 198. If the accused or detainees are tortured, paragraph 2 Article 243(Criminal Procedure Code) provides that: Any statement of a person obtained from inducement, a promise, threat, deceit, torture, physical force, or any other unlawful act shall be inadmissible as evidence. 199. In addition, Section 226 of The Criminal Procedure Code provides: “Any material, documentary or oral evidence likely to prove the guilt or ­innocence of the accused is admissible, provided it was not obtained through inducement, promise, threat, deception or other unlawful means ….” The Supreme Court has ruled many cases in recognition of this principle. 200. A person tortured by a government official becomes would fall under the category of an injured person in a criminal case and has the right to receive protection, proper treatment and necessary and appropriate remuneration from the State as provided by law (Section 245 of the Constitution). paras. 198–200. Ibid. 210. Section  312 of the Penal Code penalizes whoever enslaves a person or causes a ­person to be in a position of servitude, brings into or sends the person out of the Kingdom, buys, sells a person, with a penalty of no more than seven year imprisonment, including a fine. In addition, Clause 20 of the Announcement No. 294 of the Revolutionary Party prohibits the purchase, sale, and exchange of a child for property. 211. The trading of slaves in the form of forcing women and children to be under the influence of others in order to seek interest in any of the following forms, such as forced prostitution or drug trafficking, has been prohibited by laws, such as clause 20 of the Announcement No. 294 of the Revolutionary Party, which forbids the use of a child as a tool in begging. 212. In addition, the Measures for Prevention and Suppression of Woman and Child Trafficking Act (1997), has set measures to prevent and suppress offences in the purchase, sale, distribution, inducement or provision of people by any means, with a purpose for sexual gratification of oneself or another, indecency or other unethical interests, whether by selling of a child, letting a child beg or work in conditions whereby his labour is cruelly exploited. The Revision Act (1997) (No. 14) of the Penal Code also regard those acts as offences.

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chapter 4 213. On June 30 1999, a Memorandum of Understanding on the Guidelines and Measures on issues of trafficking of women and children who are victims of human trafficking was signed among concerned agencies, namely the Office of the Prime Minister, the Royal Thai Police, the Department of Public Welfare, the Coordinating Committee on Matters of Foreign Children, and the Network for Prevention and Rectification of Trafficking of Women and Children. 214. On top of this, the Control of Begging Act (1941), stipulates that a beggar shall receive welfare assistance and vocational training. It also empowers administrative officials or police officers to prevent or suppress beggars who have turned down welfare aid or assistance. paras. 210–214. Ibid. paras. 215–219. Ibid. 222. The data of the National Statistical Office shows that in 1996 there are 506,600 child labour working in the agricultural sector and 674,400 child labour working outside of the agricultural sector. 223. The data of the Department of Labour Protection and Welfare as of 8 February 1997 shows that there are 115,110 child labour working in factories. 224. The data of the Ministry of Education in 1999 indicates that the number of children who have passed compulsory education (grade 6) but lack the opportunity to further their education, thereby having to work to earn a living, is 102,873. paras. 222–224. Ibid.: 226. The Ministry of Education has increased the opportunity in receiving education by extending compulsory education from 6 years to 9 years. It also provides welfare and other necessary assistance to disadvantaged students, in order to prevent them from entering the labour market, whether agricultural and non agricultural sectors, before their suitable age. 227. Section  43 of the 1997 Constitution requires the State to provide not less than 12 years free basic education to the people. This came into force in 2002, providing more opportunity for children to receive education at a higher level. This measure shall be more efficient in preventing the use of child labour. 228. In addition, Thailand has promulgated the National Education Act (1999), which also recognized the right to receive education under Section 43 of the Constitution. The Act came into force on 20 August 1999. 229. The Ministry of Labour and Social Welfare has several measures to prevent the use of child labour. 230. In the budgetary year of 1995 1996, the Ministry has set up operational centers aiming at giving assistance to woman and child labour all over the country. This is to prevent problems of woman and child labour from entering the labour market. It was done by the setting up and carrying out of trainings for village volunteers on labour matters. The trainings provided knowledge to community leaders on the use of woman labour. They also provide knowledge to child labour preparing them for their work and livelihood. Furthermore, the trainings provide knowledge to school administrators on how to use the media in public relations campaigns.

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231. A project to solve problems of child labour is a program that aims at gearing child labour in the provinces to enter the labour market with clear directions and for them to have knowledge and understanding on their rights and duties under the labour laws. In the budgetary years of 1995–1996, there were trainings for parents and community leaders on rights of child labour. 232. A program to disseminate knowledge to prevent and solve child labour problems is done by creating activities to disseminate information on labour issues, including projection of video tapes, exhibitions and question and answer sessions. Measures to protect child labour 233. The Ministry of Labour and Social Welfare has carried out many measures to protect child labour, such as: (a) Increased labour inspection in factories where there is heavy use of child labour, as well as in the small businesses; (b) Sought cooperation from local police stations to suppress and take criminal action against those who use child labour of less than 13 years of age, treat child labour cruelly, detain or restrain child labour, or allow child labour to carry out dangerous work. Cases of child labour abuses usually face stern punishment from the court. For instance, a case of an owner of a drinking paper cones plant who forced 28 child labourers, aged 9–20 years, to work from 5 a.m. to 11 p.m. without rest. The court held him guilty and sentenced him to 10 years imprisonment; (c) Set up a 24 hour hot line operational centers to receive information of unfair use of child labour; (d) Visited child labour on behalf of their parents; (e) Revised labour protection laws by raising employment age from 13 years to 15 years of age, as well as increasing the penalty for breaching the said law; (f) Set up a committee for the protection of child labour as required by the Cabinet’s Decision, aiming at setting clear directions and measures for the protection and development of child labour; (g) Set up complaint box on child labour matters. paras. 226–233. Ibid.: Forced labour shall not be imposed except by virtue of the law specifically enacted for the purpose of averting imminent public calamity or by virtue of the law which provides for its imposition during the time when the country is in a state of war or armed conflict, or when a state of emergency or martial law is declared. 235. In addition, a person who forces others to illegally work for him shall also be guilty, under Sections 309 310 of the Penal Code, for the offences against one’s liberty. 236. Laws regarding forced labour are: (a) Martial Law Act (1904); (b) Local Administration Act (1904); (c) Designation of Duties of Thais during War Time Act (1941); (d) Drafting for Military Service Act (1987); (e) Civil Defense Act (1979). 237. Use of prisoners’ labour is governed by the Corrections Act (1936), which provides that warders can assign final prisoners to various works according to official rules and regulations.

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chapter 4 238. The court may suspend the implementation of a sentence with an imprisonment term of less than two years, by putting the person on probation and assign him to perform community or public services instead. In such a case, the offender has to give his consent because it is considered to be a kind of forced labour, aiming to rehabilitate the offender, thereby allowing him to become a good citizen. paras. 234–238. Ibid., paras. 262–268. Ibid.: 288. For the military court, the detention of alleged offenders who are under its jurisdiction shall follow Section 46 of the Act on Organization of Military Court (1956). ­Under that section the military commandant shall mutatis mutandis follow the penalty authorities stated in a law on military discipline. However, this must not exceed 90 days or he may be detained each time for 12 days but in total not more than 90 days, depending on the case and the status of the alleged. 289. Under the Military Discipline Act, anyone who committed a disciplinary offence shall be punished in one of these five ways. They are admonition, probation, ­restraint, ­detention and imprisonment. No new ways of punishment shall be brought up and to punish in other forms is also forbidden. 290. Disciplinary punishment for the detainees shall be according to the Military Prison Act of 1936. The Commandant of the military prison may order an imprisonment in a solitary cell for not more than 15 days or 1 month according to the level of the prison. And no fetters shall be applied unless necessary. A military prison shall take in detainee who is punished for an imprisonment not over three years. If the duration of imprisonment is over 3 years he shall be sent to a civil prison. 291. Military prisoners have to work from 08.00 16.00 hrs. and rest between 12.00–13.00 hrs. during work day. During holidays they shall work on health and sanitary work in the morning from 06.00 12.00 hrs. and rest in the afternoon. paras. 288–91. Ibid., paras. 317–319. Ibid., paras. 321–333. Ibid.: 337 ……Immigrants and refugees escaped from fighting in Cambodia are divided into three groups. The first group, 15,173 people, fled from the communist regime into Thai territory since 1975. The second group, about 100,000 people, fled from the Vietnamese invasion of Phnom Penh on 7 January 1979. These two groups had been assisted by the United Nations High Commission on Refugees (unhcr) to resettle in third countries under agreements between the countries concerned and unhcr. The third group, around 370,000 Cambodians, fled to Thai border when the Vietnamese military carried out a major raid against the resisting groups in the late year 1984. For the third group, unhcr had sent all of them to their motherland on 7 May 1993. This is done in accordance with the Memorandum of Understanding between the Thai Government, the National Council of Cambodia and unhcr. 338. After the coup d’état in Cambodia in July 1998, the escapees from fighting in Cambodia had again fled into Thailand. And later on there were fighting between the Cambodia military and the force of Prince Ranaridh at Osmed. This caused thousands of Cambodians to flee into Thai territory in Kabcheung District, Surin Province. After

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that many thousands of Cambodians, in an area controlled by the Khmer rouge, had escaped from the town of Allongweng that later was captured by the government force. There were a total of 64,000 Cambodians who fled into Phusing District of Srisaket Province. 339. The Thai government arranged 2 tripartite meetings between Thailand, Cambodia and unhcr to solve the problems on 27 April 1998 and 15 February 1999 respectively. At the first meeting in Bangkok there was an agreement to send 64,000 escapees living in Thailand to their motherland under the principle of voluntarily return of the Paris Peace Agreement. However, at that time, Cambodia was preparing for an election and the Khmer Rouge still had influence in an area of Thai Cambodian border. It was therefore not possible to send the escapees back. As a result, the escapees were left in two areas of Thai territory at (1) the areas of Phunoi, Baan Na Tambon, Phusing District of Srisaket Province and (2) the areas of Chong Khao Ploo, Muang District of Trad Province. Pending for the second tripartite meeting of Thai Cambodia unhcr, there were escapees who voluntarily return to their homeland. 340. At the second tripartite Thai Cambodia unhcr meeting on 15 February 1999 in Phnom Penh, the matter of sending the remaining 18,000 escapees back to Cambodia before raining season was considered. It was emphasized on the safety and voluntary return as well as the assistance from the world community and unhcr given to the repatriation process and reintegration into society based on the principle of sharing international borders. Moreover, there were discussions on finding solutions to the remaining problems especially the problems of land mine at Thai Cambodian borders and a repair of 3 temporary shelters in Thailand. And the meeting agreed to keep this tripartite cooperation as a forum for consultation and monitoring of issues related to reintegration assistance. Later, the Thai government cooperated with unhcr and Cambodia in sending the escapees back to home country. paras. 337–340. Ibid., paras. 321–354. Ibid., para. 367–378. Ibid., para. 422. Ibid., paras. 427–428. Ibid., paras. 429–437. Ibid., paras. 448; 452–463. Ibid. : 471. At present, there are several laws in Thailand which indirectly affect the exercise of freedom of expression. For example, the Martial Law Act (1914), Section 12, provides “When there is a necessity to keep order without any danger from outside of or within the Kingdom, there shall be a Royal Proclamation for applying the Martial Law as a whole or certain sections of it or certain parts of a section or sections, including to set conditions in applying those provision in a part of the Kingdom or throughout the Kingdom. And once it is proclaimed to be applied at a certain time or at a certain place, the provisions in any act or law which is in contrary to the Martial Law which is being applied, such provisions shall ceased to have force and the provisions of the Martial Law shall be applied in their place.” 472. Section 6 provides “In the region which the Martial Law is proclaimed to be applied; the Military officials shall have authority over the civil officials in matters related to

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sion of the people in Thailand has been brought about in line with Article 19 of the Covenant. 483. The Ministry of Interior has started to make a survey on all laws which may be in contrary with the freedom of expression of the people under Section 39 of the Constitution in order to seek ways to repeal or revise them to ensure consistency with the Constitution, for example the Press Act (1941). 484. The Cabinet has approved the Bill on Registration of the Press which once in force shall supersede the former Press Act (1941).) paras. 471–484. Ibid.: 486. Therefore, any propaganda for war is an illegal act in Thailand. The only exception is when there is an aggression from other country and there is a need to mobilize the people to help and cooperate in the national defense which is a legal action under international law. Thailand has made a statement to this effect to the United Nations when it applied to become a member of this Covenant. 487. The advocacy of national, racial, or religious hatred which constitutes incitement to discrimination, hostility and violence is forbidden under paragraph 3 Section 30 of the Constitution of Thailand. This is already dealt with under the report on Article 2. And the person whose right is violated by the action in contrary to paragraph 3 of Section 30 of Constitution shall always have right to raise paragraph 2 of Section 28 of the Constitution to exercise his right through court or raise a defense in the court. paras. 486–487. Ibid.: 489. However, the peaceful assembly of the people under paragraph 1 of Section  44 may  fall under certain restrictions of the law for the public interest; therefore, ­paragraph 2 of Section 44 provides: The restriction on such liberty under paragraph one shall not be imposed except by virtue of the law specifically enacted for the case of public assembling and for securing public convenience in the use of public places or for maintaining public order during the time when the country is in a state of war, or when a state of emergency or martial law is declared. 490. At present there are several laws in which the right to peaceful assembly under paragraph 2 of Section 44 is limited, for example: (a) The facilitation of the people in using a public place. The Land Traffics Act (1979), which protects the right of the people to travel on the street, prohibits a march which obstructs traffic or any action on the walkway or street which obstructs others in travelling about without a good reason and there must be permission from the competent traffic officials to use the route for a march to be legal; (b) The prevention of the noise nuisance. The Publicity by Amplifier Control Act (1950) may be applied in the case of use of an amplifier in an assembly which may cause nuisance to the general public. The permission from the officials to use an amplifier which specifies the time and place in using an amplifier and should the noise cause too much nuisance the competent officials may instruct the assembly to lower the volume; (c) The prevention and alleviation of public disaster. The Civil Defense Act (1979) authorises civilians to prevent and provide relief from public disasters and

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chapter 4 terrorism which intends to destroy the property of the people or the state by organizing a national civil defense committee chaired by the Minister of Interior in order to formulate disaster prevention plan. Therefore, should the march or the assemblage of people risks public safety the state can apply certain preventive measures. But in practice, this law has never been invoked in the handling of any march or assemblage; (d) The proclamation of state of emergency: The Act on Public Administration in Emergency (1956). This act authorises civilians namely the Prime Minister and the Minister of Interior to proclaim a state of emergency and once it is proclaimed the Minister of Interior has power to appoint officers to maintain peace and order and has the power to forbid public assemblage at any place in the country, to announce a curfew, and to forbid the publication or print any document affecting the security or safety of the country; Martial Law Act (1914). In case of necessity to maintain peace and order of the country and to prevent harm from internal or external source in time of abnormalcy, a proclamation on application of martial law can be made as a whole or only certain sections throughout the country or in certain specific areas. Once the martial law is proclaimed, should there be a situation of war or civil disobedience, the military officials has authority to issue order to limit the freedom to assemble of the people by forbidding any assemblage of five persons or more and to issue an order of curfew; (e) Other cases. The Penal Code which is a general law of the country provides about offence related to illegal assemblage and penalize those act for example, the offence on undermining the internal peace (Section 116), offence on instigating strike (Section  117), offence on assemblage of ten or more people in order to cause a breach of the peace of the country (Section  215 216) and offence on obstruction of the public way for land traffic (Section 385). 491. From the texts of the above said laws, one can see that Thailand has recognized in the Constitution the freedom of the people to assemble peacefully and the limitations of the said freedom shall be strictly done by the power of a law as provided in the Constitution. 492. However, in Thailand there have been many incidents of violence between state officials and the people who exercise their freedom to assemble. Therefore, Thailand has given importance on abolition or revision of certain laws which have an effect of limiting the freedom to assemble of the people. And on 12 September 1992, the Cabinet has resolved that the governmental agencies which have authority to use weapons shall give education on basic human rights to their staff including to give knowledge on freedom of peaceful assembly. And it calls for an acceleration in giving correct knowledge and understanding on freedom to assemble peacefully to the people too. paras. 489–492. Ibid., paras. 488–514. Ibid., para. 538. Ibid.: The acquisition of nationality

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553. A marriage does not, by itself, effect the nationality of his or her spouse. That is a woman or man who is married shall not automatically lose or gain a nationality on account of the marriage. However, the Nationality Act (1992) gives a right to a Thai woman who is married to a foreigner to have the nationality of her husband according to the law on nationality of her husband. If she wants to give up her Thai nationality, she shall express her wish to the authority through the form and by the method as provided in the Ministerial Regulations. This is a matter of the desire of that woman to abandon her Thai nationality or not. And the law still gives a right to a Thai woman who abandoned her nationality in the case of being married to a foreigner under Section 13; if the marriage is terminated on any account, she has the right to resume Thai nationality. 554. In the case of a foreign woman who is married to a Thai, if she wishes to acquire a Thai nationality, she may apply to the competent authority by using a form and following the methods as provided in the Ministerial Regulation for a consideration for conferring her a Thai nationality. This is a specific right given to foreign women and there are those who perceive this as contrary to the principle of equality and being a discrimination. Therefore, in 1996 the Council of Ministers, resolved to give the same right to a foreign man who is married to a Thai woman, and assigned the related or governmental agencies to consider the pros and cons of such a revision of the said law. At this moment it is still pending and there has not been any revision of law to confer such a right to foreign men. The use of family name 555. Under Sections 12 14 of the Family Name Act (1962), a married woman shall use the family name of her husband, this is a custom which goes back as far as 1913 when the Act on Naming a Family Name was promulgated. When a woman becomes a widow by a divorce she shall resume her maiden name and a woman who becomes a widow out of the death of her husband, shall use the family name of her husband, later on in (1987) there was a revision of the said act to allow a widow by account of the death of her husband to have a choice to use her maiden name or the family name of her late husband. This is being criticized for causing inequality. However, at present the Council of Ministers has made a resolution to revise the said Family Name Act (1962) to allow a woman to have choice to use a family name in a manner equal to a man. The holding of title in land 556. Under the Land Code, an expatriate cannot hold title in land (except the case of a condominium). But it often appears that a foreigner has exercised the right of a Thai in purchasing a piece of land. Therefore, there is a prohibition or registering the transfer of title of land to a Thai who is married to a foreigner. This is a prohibition on both sexes and being consistent with the principle of equality. But in practice, there is a criticism that such a prohibition has affected women more than men for the status of marriage of women can be easily seen in the word come before her name i.e. Mrs. whereas a married Thai male has no change in the title. 557. Therefore, the Cabinet has resolved to revise several laws such as the Land Code and the Condominium Act, to allow foreigners to hold title in immovables.

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chapter 4 558. Now there is an Act for Revising the Land Code (No. 8) (1999) to confer right to hold land title to foreigners who invest inThailand. paras. 553–558. Ibid., paras. 586–623. The position of the law at the time was as follows: 617. Formerly the granting of Thai nationality is under the provision of the Nationality Act (1992). A child may acquire the Thai nationality by jus sanguine after his father or by jus soli for being born in Thailand under Section 7 of the said Act. A person who would be granted the Thai nationality would have to be: (1) A person born of a father of Thai nationality whether within or outside the Kingdom of Thailand; (2) A person born outside the Kingdom of Thailand of a mother of Thai nationality though whose lawful father is unknown or has no nationality; (3) A person born within the Kingdom of Thailand. 618. The announcement No. 337 of the Revolutionary Party (1972) revoked the Thai nationalities of persons born in the Kingdom of Thailand of a foreign father or of a foreign mother, whose lawful father is unknown and whose father or mother was: (1) Given the leniency for temporary residence in the Kingdom of Thailand as a special case; (2) Permitted to stay temporary in the Kingdom of Thailand; (3) Entering and residing in the Kingdom of Thailand without permission under Thai immigration law; unless the Minister of Interior shall see otherwise and order otherwise. 619. In 1992, a revised version of the Nationality Act gave descendants of Thai fathers or mothers the rights to acquire Thai nationality by jus sanguine whether he or she is born in or outside of the Kingdom of Thailand. The children of such a person shall acquire Thai nationality, except those persons under Paragraph 1 of Section 7 bis, which provides that a person who was born in Thailand of foreign parents and at the time of birth, his lawful father or his father were not married to his mother, or that his mother was: (1) Given leniency for temporary residence in the Kingdom of Thailand; (2) Permitted to stay temporary in the Kingdom of Thailand; (3) Entered into the Kingdom of Thailand without permission under the immigration law unless the Minister (of Interior) shall grant Thai nationality on a special basis under the principles set by the Cabinet. 620. The revision of the law is useful in reducing problems of stateless children which may occur when a child is born in Thailand from foreign parents under the said Section 7 bis and did not acquire the nationality of their parents, or that the parents are stateless. 621. Under the principles applied by the Ministry of Interior, a minority group refers to persons who does not have Thai nationality but are temporarily residing in Thailand because of various reasons such as illegal migrations. 622. Whether a child born of this person shall acquire the Thai nationality, depends on whether the father or the mother is of Thai nationality. The child shall then acquire Thai nationality after his father or mother as mentioned above. 623. However, Thailand is trying to resolve the problem of stateless children in order to become more consistent with Article 24 of the Covenant. paras. 617–623.

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Ibid., para. 627. Ibid. 642. Thailand is a party to the Convention on Political Rights of Women. However, the participation of women in the administration of the State especially in the higher echelon like Ministers is comparatively quite minimal. This may be the result of the fact that the assuming of administrative posts is directed by the political party or parties forming the Government. There are few women who take administrative posts in political parties, hindering them from making decisions and forming policies. 643. The limited roles of women does not mean that women are being left out. But it is the result of fewer participation of women in comparison to the participation of men in the political arena. The statistics of the general election held on 17 November 1996 shows that out of 2,310 candidates there are only 360 female candidates and out of the total 393 elected candidate there are only 22 female. Under the present government……(2001), only three women hold positions in the Cabinet. 644. It is worth noting that the trend shows that the change of the role of women in politics has been slow compared to the role of Thai women in the economic field. This may be caused by the Thai attitude that leading roles belong to men, is entrenched in the Thai society. Such an attitude is a major obstacle to the progress of the participation of women in politics, which results in very few women assuming political posts. Another fact is that politics is regarded as a non attractive career. It is more or less a matter of revolutionists. It therefore does not attract women to participate in politics as much as it should. paras. 642–644. Ibid., para. 651. Ibid. paras. 655–661. Concluding Observations, CCPR/CO/84/THA(July 2005), supra note 7: welcoming 4. …(a) The National Human Rights Commission as a mechanism to promote respect for human rights under sections 199 and 200 of the Constitution; (b) The Department for the Protection of Rights and Liberties under the Ministry of Justice; (c) The National Reconciliation Commission, seeking peaceful solutions to the situation in the southern provinces; and (d) The National Child Protection Committee and provincial child protection committees. 5. The Committee welcomes the enactment of the Child Protection Act. 6. The Committee notes with appreciation the adoption of the National Plan of Action on Human Rights. paras. 4–6. Ibid., para. 7. Ibid., para. 8. Ibid., para. 9. Ibid. 10. The Committee is concerned at the persistent allegations of serious human rights violations, including widespread instances of extrajudicial killings and ill-treatment by the police and members of armed forces, illustrated by incidents such as the Tak Bai incident in October 2004, the Krue Se mosque incident on 28 April 2004 and

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chapter 4 the extraordinarily large number of killings during the “war on drugs” which began in February 2003. Human rights defenders, community leaders, demonstrators and other members of civil society continue to be targets of such actions, and any investigations have generally failed to lead to prosecutions and sentences commensurate with the gravity of the crimes committed, creating a culture of impunity. The Committee further notes with concern that this situation reflects a lack of effective remedies available to victims of human rights violations, which is incompatible with Article 2, paragraph 3, of the Covenant (arts. 2, 6, 7). The State party should conduct full and impartial investigations into these and such other events and should, depending on the findings of the investigations, institute proceedings against the perpetrators. The State party should also ensure that victims and their families, including the relatives of missing and disappeared persons, receive adequate redress. Furthermore, it should continue its efforts to train police officers, members of the military and prison officers to scrupulously respect applicable international standards. The State party should actively pursue the idea of establishing an independent civilian body to investigate complaints filed against law enforcement officials. para. 10. Ibid., para. 11. Ibid. 12. Notwithstanding the pending enactment of the Prevention of Domestic Violence Bill and the measures taken by the State party, including the “white ribbons” campaign, the Committee is concerned at reports that domestic violence is prevalent and that specific legal ­provisions on domestic violence, including marital rape, are lacking in the State party’s legislation (arts. 3, 7, 26). The State party should adopt the necessary policy and legal frameworks to effectively combat domestic violence. It should establish crisis-centre hotlines and victim support centres equipped with medical, psychological and legal support, including shelters. Law enforcement officials, in particular police officers, should also be provided­with appropriate training to deal with cases of domestic violence, and awareness-­raising efforts should be continued to widely sensitize members of the public. para.12. Ibid. 13. The Committee is concerned that the Emergency Decree on Government Administration in States of Emergency which came into immediate effect on 16 July 2005, and on the basis of which a state of emergency was declared in three southern provinces, does not explicitly specify,or place sufficient limits, on the derogations from the rights protected by the Covenant that may be made in emergencies and does not guarantee full implementation of Article 4 of the Covenant. It is especially concerned that the Decree provides for officials enforcing the state of emergency to be exempt from legal and disciplinary actions, thus exacerbating the problem of impunity. Detention without external safeguards beyond 48 hours should be prohibited (art. 4). The State party should ensure that all the requirements of Article 4 of the Covenant are complied with in its law and practice, including the prohibition of derogation from the rights listed in its paragraph 2. In this regard, the Committee draws the attention of the State party to its general comment No. 29 and the obligations imposed upon the State party to inform other States parties, as required by its paragraph 3. para. 13.

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Ibid. 14. The Committee notes with concern that the death penalty is not restricted to the “most serious crimes” within the meaning of article 6, paragraph 2, and is applicable to drug trafficking. The Committee regrets that, despite the amendment in 2003 of the Penal Code, which prohibits imposition of the death penalty on persons below 18 years of age, the State party has not yet withdrawn its declaration to the Covenant on article 6, paragraph 5 (art. 6). The State party should review the imposition of the death penalty for offences related to drug trafficking in order to reduce the categories of crime punishable by death. The State party should also consider the withdrawal of its declaration on Article 6, paragraph 5, of the Covenant. para. 14. Ibid. 15. The Committee is concerned about the persistent allegations of excessive use of force by law enforcement officials, as well as ill-treatment at the time of arrest and during police custody. The Committee is also concerned about reports of the widespread use of torture and cruel, inhuman or degrading treatment of detainees by law enforcement officials, including in the so-called “safe houses.” It is also concerned at the impunity flowing from the fact that only a few of the investigations into cases of illtreatment have resulted in prosecutions, and fewer, in convictions, and that adequate compensation to victims has not been provided (arts. 2, 7, 9). The State party should guarantee in practice unimpeded access to legal counsel and doctors immediately after arrest and during detention. The arrested person should have an opportunity immediately to inform the family about the arrest and place of detention. Provision should be made for a medical examination at the beginning and end of the detention period. Provision should also be made for prompt and effective remedies to allow detainees to challenge the legality of their detention. Anyone arrested or detained on a criminal charge must be brought promptly before a judge. The State party should ensure that all alleged cases of torture, illtreatment, disproportionate use of force by police and death in custody are fully and promptly investigated, that those found responsible are brought to justice, and that compensation is provided to the victims or their families. para. 15. Ibid. 16. The Committee is concerned at the overcrowding and general conditions of places of detention, particularly with regard to sanitation and access to health care and adequate food. The Committee is also concerned that the right of detainees of access to lawyers and members of the family is not always observed in practice. The Committee considers the duration of detention before a person is brought before a judge to be incompatible with the requirements of the Covenant. The Committee deplores the continued shackling of death row prisoners and reports of prolonged solitary confinement. Pretrial detainees frequently are not segregated from convicted prisoners. Furthermore, the Committee is concerned at the significant number of women in the prison population and the fact that juveniles are often held in adult cells. (arts. 7, 10 and 24). The State party should bring prison conditions into line with the United Nations Standard Minimum Rules for the Treatment of Prisoners as a matter of priority. The State party should guarantee the right of detainees to be treated humanely and with respect for their dignity, particularly with regard to hygienic conditions, access to health care and

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chapter 4 adequate food. Detention should be viewed only as a last resort, and provision should be made for alternative measures. The use of shackling and long periods of solitary confinement should be stopped immediately. Special protection should be provided for juveniles, including their compulsory segregation from adults. para. 16. Ibid. 17. While acknowledging the delegation’s assurances that the Provincial Admission Board is in the process of being established, the Committee notes with concern the lack of a systematic adjudication procedure for asylum-seekers. The Committee is also concerned that the relocation plan of March 2005 requires all refugees from Myanmar in the State party to move to the camps along the border and that those who do not comply will be considered illegal migrants and will face forcible deportation to Myanmar. Furthermore, the Committee is concerned about the deplorable situation of the Hmong people in Petchabun Province, the majority of them women and children who are not considered refugees by the State party and are facing imminent deportation to a State where they fear they will be persecuted. Finally, the Committee notes with concern that the current screening and expulsion procedures contain no provisions guaranteeing respect for the rights protected by the Covenant (arts. 7 and 13). The State party should establish a mechanism to prohibit the extradition, expulsion, deportation or forcible return of aliens to a country where they would be at risk of torture or ill-treatment, including the right to judicial review with suspensive effect. The State party should observe its obligation to respect a fundamental principle of international law, the principle of non-refoulement. para. 17. Ibid. 18. The Committee is concerned about reports of intimidation and harassment against local and foreign journalists and media personnel as well as of defamation suits against them, originating at the highest political level. It is also concerned at the impact of the Emergency Decree on Government Administration in States of Emergency which imposes serious restrictions on media freedom (art. 19, para. 3). The State party should take adequate measures to prevent further erosion of freedom of expression, in particular, threats to and harassment of media personnel and journalists, and ensure that such cases are investigated promptly and that suitable action is taken against those responsible, regardless of rank or status. para. 18. Ibid. 19. While welcoming the aspiration of the State party to accept and foster a vibrant civil society, including many human rights organizations, the Committee is nevertheless concerned at the number of incidents against human rights defenders and community leaders, including intimidation and verbal and physical attacks, enforced disappearances and extrajudicial killings (arts. 19, 21 and 22). The State party must take measures to immediately halt and protect against harassment and attacks against human rights defenders and community leaders. The State party must systematically investigate all reported instances of intimidation, harassment and attacks and guarantee effective remedies to victims and their families. para. 19. Ibid. 20. Notwithstanding the serious efforts undertaken by the State party to address the issue of trafficking in persons, including the establishment in March 2005 of the National

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Committee on Prevention and Suppression of Human Trafficking, and while welcoming the planned enactment of the new law on human trafficking, the Committee remains concerned that Thailand is a major country of origin, transit and destination for trafficking in persons for purposes of sexual exploitation and forced labour. The Committee is also concerned that child prostitution remains widespread. The Committee notes with concern that certain groups are at a particularly higher risk of being sold, trafficked and exploited, i.e. street children, orphans, ­stateless ­persons, migrants, persons belonging to ethnic minorities and refugees/asylum-seekers (arts. 8 and 24). The State party should continue and strengthen its measures to prosecute and punish trafficking and to adequately protect the human rights of all witnesses and victims of trafficking, in particular by securing their places of refuge and opportunities to give evidence. The State party should enact the Suppression of Human Trafficking Bill without delay. para. 20. Ibid. 21. The Committee is concerned about the significant proportion of children, often stateless or of foreign nationality, in the State party who engage in labour and, as explained by the delegation, are often victims of trafficking (arts. 8 and 24). The State party should strengthen the enforcement of the existing legislation and policies against child labour. Victims of trafficking must be afforded adequate protection. The State party should make every effort, including preventive measures, to ensure that children who engage in labour do not work under conditions harmful to them and that they continue to have access to education. The State party should take action to implement policies and legislation for the eradication of child labour, inter alia through public-awareness campaigns and education of the public on the protection of the rights of children. para. 21. Ibid. 22. Notwithstanding the corrective measures taken by the State party, most notably through the Central Registration Regulations 1992 and 1996, to address the issue of statelessness among ethnic minorities, including the Highlanders, the Committee remains concerned that a significant number of persons under its jurisdiction remain stateless, with negative consequences for the full enjoyment of their Covenant rights, as well as the right to work and their access to basic services, including health care and education. The Committee is concerned that their statelessness renders them vulnerable to abuse and exploitation. The Committee is also concerned about the low levels of birth registration, especially among Highlander children. (arts. 2 and 24). The State party should continue to implement measures to naturalize the stateless persons who were born in Thailand and are living under its jurisdiction. The State party should also review its policy regarding birth registration of children belonging to ethnic minority groups, including the Highlanders, and asylum-seeking/refugee children, and ensure that all children born in the State party are issued with birth certificates. para. 22. Ibid. 23. The Committee is concerned about the lack of full protection of the rights of registered and unregistered migrant workers in Thailand, particularly with regard to liberty of movement, access to social services and education, and access to personal documents. The deplorable conditions in which migrants are obliged to live and work indicate serious violations of articles 8 and 26 of the Covenant. The Committee notes that

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chapter 4 ethnic minorities and migrants from Myanmar are particularly vulnerable to exploitation by employers as well as to deportation by the Thai authorities. The Committee is also concerned that a significant number of migrant workers, mainly from Myanmar, are still missing in the aftermath of the tsunami in December 2004 and that others were not provided with the necessary humanitarian assistance due to their lack of legal status (arts. 2, 8 and 26). The State party must take measures to effectively implement the existing legislation providing for the rights of migrant workers. Migrant workers should be afforded full and effective access to social services, educational facilities and personal documents, in accordance with the principle of non-discrimination. The State party should consider establishing a governmental mechanism to which migrant workers can report violations of their rights by their employers, including illegal withholding of their personal documents. The Committee also recommends that humanitarian assistance be effectively provided to all victims of the tsunami disaster without discrimination, regardless of their legal status. para. 23. Ibid.: 24. The Committee expresses its concern about the structural discrimination by the State party against minority communities, in particular the Highlanders with regard to citizenship, land rights, freedom of movement and the protection of their way of life. The Committee notes with concern the treatment of the Highlanders by law enforcement officials, in particular their forced eviction and relocation in the context of the 1992 Master Plan on Community Development, Environment and Narcotic Crop Control in Highland Areas, which gravely affected their livelihood and way of life, as well as the reports of extrajudicial killings, harassment and confiscation of property in the context­of the “war on drugs” campaign. The Committee is also concerned about the construction of the Thai-Malaysian Gas Pipeline and other development projects which have been carried out with minimal consultation with the concerned communities. In addition, the Committee is concerned about violent suppression of peaceful demonstrations by law enforcement officers in contravention of articles 7, 19, 21 and 27 of the Covenant (arts. 2, 7, 19, 21 and 27). The State party should guarantee the full enjoyment of the rights of persons belonging to minorities that are set out in the Covenant, in particular with respect to the use of land and natural resources, through effective consultations with local communities. The State party should respect the rights of persons belonging to minorities to enjoy their own culture, to profess and practice their own religion, and to use their own language in community with other members of their group. para. 24. Thailand’s additional report (2006), sent by Thai mission, Geneva, 2 October 2006. Ibid., p. 9. Ibid. The report states as follows in relation to the Emergency Decree: Section  17 stipulates: A Competent Official and a person having identical powers and duties as a Competent Official under this Emergency Decree shall not be subject to civil, criminal or disciplinary liabilities arising from the performance of functions for the termination or prevention of an illegal act if such act was performed in a good faith, non-discriminatory, and was not unreasonable in the circumstances or exceed

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the extent of necessity, but this does not preclude the right of a victim to seek compensation from a government agency under the law on liability for wrongful act of officials. As the exercising of powers and duties of the Competent Officials to resolve the emergency situation requires expedient and efficient operations to rapidly terminate the problems and to protect public safety and restore people’s well being, certain measures need to be enacted to give the Competent Officials confidence in carrying out their duties under the law. p.12. Ibid. The injured person is not abridged of the right to claim compensation from the administration according to the Tortious Liability of Officials Act b.e. 2539. For the reasons above, the Emergency Decree on Public Administration in Emergency Situation be 2548 (2005) has specified various measures as necessary for dealing with the emergency situation, which shall be effective following the time declared but no longer than three months. During that period, a person in the area where the emergency situation or a serious situation is declared shall enjoy every right prescribed by the Constitution and the law, except where there are reasonable grounds that implicate the person as a conspirator, an employer, a propagandist or a supporter of the emergency situation, accordingly with stringent measures of scrutiny from the judiciary organ. Additionally, there exist other measures to protect the rights and liberties of the suspected persons according to the provision of Article 4 of the Covenant on Civil and Political Rights. This Emergency Decree does not at all evade commitments under Articles 6, 7, 8, 11, 15 and 18 of the Covenant. p.14. Ibid., p. 19. Ibid., p. 19. Ibid., p. 22. Thailand’s second report, CCPR/C/THA/2 (March 2015). Ibid., para. 2. Ibid., Withdrawal of Interpretative Declarations (No.7) 4. The Committee for the Promotion of Implementation of the International Covenant on Civil and Political Rights (iccpr), at its first meeting in 2008 (1/2551) on 15 May 2008 organized by the Ministry of Justice, considered possible withdrawal of Thailand’s interpretative declaration and reached an opinion that Thailand was ready to withdraw its interpretative declaration on Article 6 Clause 5 and on Article 9 Clause 3, since internal law amendments had been made to comply with the Covenant, detailed as follows: (a) A  rticle 6 Paragraph 5 Abolition of capital punishment on persons under eighteen years of age. Apart from the Penal Code Amendment Act (No.16) b.e. 2546 (2003) Section 3 which abolished capital punishment on offenders who are ­under eighteen years of age, effective from 2003, there was also the Criminal ­Procedure Code Amendment Act (No.25) b.e. 2550 (2007) which guarantees the child its right to life and survival from the time of conception in the mother’s womb, i.e. by delaying punishment on pregnant women and changing from capital punishment to life imprisonment. The provision states that for a woman sentenced to capital punishment, if she is pregnant at the time, the punishment shall be postponed to three

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years after the date of birth of the child, on condition that the child has survived from birth, and the capital punishment sentence served on her shall be reduced to life imprisonment, (Details in Thailand’s Country Report on Implementation of the Convention on the Rights of the Child,No.3-4, p. 22) (b) A  rticle 9 Clause 3 Rights and liberties to security of human persons. The Constitution of the Kingdom of Thailand b.e. 2550 (2007) “provides for rights in the j­ udicial process in Part 4 of the Chapter on Rights and Liberties of the Thai People (Sections 39–40), which cover the essence as contained in Article 9 of the Covenant. In addition, Section 87 of the Criminal Procedure Code, as amended by the Criminal Procedure Code Amendment Act (No.22) b.e. 2547 (2004), prohibits detention of a person under arrest for a longer period than necessary considering the character of the case. The Section clearly states that in a case whereby the person under arrest could not be granted a temporary release, and there are substantial grounds to conduct an inquiry or to file a case in court, the person under arrest shall be brought to court within 48 hours. 5. Such amendments of the law have already ensured that the situation on laws and judicial process in Thailand is in compliance with Article 6 Paragraph 5 and Article 9 Paragraph 3 of the Covenant. At this point, Thailand has already withdrawn the aforementioned interpretative declarations. paras. 4–5. 93 Ibid., paras. 18–22. 94 Ibid. 32. The Constitution, Section 30 endorses equality before the law and equality between men and women. 33. Thailand has made an amendment to the Civil and Commercial Code (No. 16) b.e. 2550 (2007) pertaining to grounds for a divorce, by adding a provision which ensures equality between men and women in regards to filing for a divorce in such case where either spouse in a marriage financially supports or recognizes another person as a husband or wife, or commits adultery or has sexual relationship with another person on a regular basis, which causes obstruction to the normal married life of the other party’s spouse, which can substantiate grounds for a divorce. (Section 1516 (1)) The provision was further amended to grant the right equally to either the wife or the husband to demand compensation from a divorce on the grounds aforementioned under Section 1516 (1). (Section 1523). paras. 32–33. 95 Ibid., para. 28. 96 Ibid. 42. There were cases of malfeasance by law enforcement officers brought to the justice process during 2005–2008, as follows: – Complaints about officers’ performance of duties – 7 cases – Court hearings of major cases involving state officers – 4 cases (2 cases are charges to sue for damage compensation from the government agencies and the officers concerned). para. 42. 97 Ibid., para. 48. 98 Ibid., para. 51. 99 Ibid., para. 52. 100 Ibid.

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55. As for persons who have fled sporadic fighting on the Burmese side and crossed into Thailand, the Thai authorities concerned have given permission to the United Nations Office of the High Commissioner for Refugees as well as other non-­governmental organizations to provide assistance to these people, based on humanitarian principles, before they returned to Myanmar once the situation there subsided. Details on this issue have already been responded in the Country Report on Implementation of the Convention on the Rights of the Child, Nos. 3-4, paras. 100–105 Case of the Laotian Hmongs in Petchabun Province 56. In consideration of the current general situation in the Democratic People’s Republic of Laos, which has made progress in regard to human rights development, as well as the Laotian government’s attempt to create reconciliation and unity in the nation, the Thai and Laotian governments came to an agreement to cooperate in addressing the issue of the Laotian Hmongs illegally immigrating into Thailand under the framework of the bilateral agreement in facilitating the repatriation of all these Laotian Hmongs back to the Democratic People’s Republic of Laos in an orderly manner in December 2009. Such endeavour was carried out with due importance given to the safety and well-being of the Laotian Hmongs repatriated so that they could make their living in a sustainable manner and enjoy appropriate choices in life. paras. 55–6. Ibid. 58. In addition, the Publishing Registration Act b.e. 2550 (2007) abolished censorship of newspapers by the Publishing Officer. To publish a newspaper no longer requires request for permission, only to notify the Officer about the operation. And the Thai Public Broadcasting Service Act, b.e. 2551 (2008) contains provisions enabling media organizations under this law to present news and information on television or radio without interference and not necessarily under control by the State. This makes the presentation of news and information for the purpose of communication free and objective, with internal supervision conducted by the organizations themselves. In practice, the media in Thailand enjoy a rather high level of rights and liberties. para. 58. Ibid., para. 63. Ibid., para. 64. Ibid. para. 66. Ibid., para. 70. Ibid., paras. 66–67. Ibid, paras. 79–84. Ibid., para. 85. Ibid., para. 88. Empowerment of Persons with Disabilities Act (b.e. 2550), Royal Gazette, Vol. 124 Part 61 kor (27 September b.e. 2550), pp. 8–24 (in Thai). Ibid., para. 91. Ibid. 92. Thailand has five laws pertaining to public emergency situations, namely the Martial Law Act b.e. 2457 (1914), the Civil Danger Protection Act b.e. 2522 (1979), the ­Special Investigation Act b.e. 2547 (2004), the Emergency Decree on Public Administration in State of Emergency b.e. 2548 (2008), and the Act on Internal Security Protection in the Kingdom b.e. 2551 (2008).

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chapter 4 93. The public security agencies have issued rules and regulations, as well as prepared essential handbooks providing details as guidelines for state officials to follow in their operation to minimize effects on the people and to observe respect for human rights. To elaborate, their performance of duties shall respect local religious principles and culture; any arrest shall only be made with consent from the three parties, namely the administration, the police and the military, and shall strictly abide by the law; the use of force shall abide by the rules on the use of force as laid down by the security agencies, which are in accordance with the United Nations Basic Regulations on the Use of Force and Firearms by Authorised Law Enforcement Officers. 94. In situations prompting necessity to limit the rights of persons for the purpose of maintaining law and order under emergency situations, e.g. in giving authority to state officers to detain suspects for 30 days, court orders shall have to be sought first, and each detention shall be for only 7 days, with possible request for extension of 7 days each time, but not exceeding 30 days in all. In granting suspects the right to counsel lawyers, that shall be considered on case by case basis, which is considered a kind of protection for the officers operating under emergency situations from being charged, to enable them to operate swiftly in order to prevent the violence from escalating or expanding. In such circumstances, the state officers shall be made aware of the importance of the policy to avoid or minimize effects on the people, with laid down strict measures for the officers at operational level to abide by the rules, regulations and orders in force, which aims to address the issue of human rights violation and to reduce the effects on the people. 95. In addition, the public sector took into consideration certain limitations of the Act on Martial Law b.e. 2457 (1914) and the Decree on State Rule in Emergency Situations b.e. 2548 (2005), thus considered to use the Act on Internal Security Protection b.e. 2551 (2008) instead of these two laws. At this stage, consideration is being made regarding the process of administration and management to enhance readiness for further effective operation under this law. paras. 92–95. Currently, the challenge is the use of Section 44 of the interim Constitution which is a catch-call provision allowing the apex of the government dominated by uniformed personnel to issue discretionary orders bypassing the legislative pillar. Ibid., para. 96. Ibid., para. 98. Ibid., paras. 99–103. Ibid., para. 105. Ibid., paras. 106–113 Ibid., para. 115. Ibid. para. 119. Ibid., para. 120. Ibid., para. 121. Ibid. 124. The Immigrants Act b.e, 2522 (1979), the Working of Alien Persons Act b.e. 2551 (2008), the Cabinet Resolution dated 14 June (2005) on Criteria and Conditions in Providing Assistance to Non-Thai Victims of Human Trafficking in Foreign Countries

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during 2005–2008. For alien persons with domicile in Thailand, those who have specialized knowledge and performed good deeds in contribution to the Thai society, including those who have received scholarships from abroad, Thailand still grants permission to these aliens to travel in and out of Thailand on specific basis, through coordination among academics, the civil society and the public sector. para. 124. Ibid. : 127. The Criminal Procedure Code, Amendment b.e. 2551 (2008), the law amended to be in accordance with Section 40 of the Constitution of the Kingdom of Thailand b.e. 2550 (2007) by providing guarantee on the various rights and liberties as follows: (a) Arrangement of interpreters, according to Section 13 of the Criminal Procedure Code, is an added measure on the original law which provides arrangement of interpreters specifically for other languages and for hand language. At present, under the new amended law, a Thai person who cannot speak or understand the official Thai language, or only knows his local dialect or local Thai dialect, shall obtain an arrangement of an interpreter at no cost. (b) The right to have adequate time and convenience in making preparation to defend a case and contact a lawyer of one’s choice, some limitations are found in relation to juvenile and family cases, since there can be delays in the processing if the children concerned have legal counselors. However, it is now a practice in majority cases, that a suspect or defendant be arranged for a private counseling session with his lawyer before giving a statement. And, there are also Police Regulations on Court Cases. (c) The right to expeditious court hearings without any delay than is necessary, and to be seriously treated in court with continuous hearings. If detention of a suspect is involved, it is compulsory for the Officer to file the case in court within the period of detention or custody during inquiry allowed, which shall not exceed the duration provided in Section 87. Nevertheless, the law provides that the inquiry and trials in court be swift, continuous and fair, which is in accordance with the said principle on the overall. (d) The right against self incrimination and forced confession, which generally applies to and affects suspects or defendants who do not have lawyers, or who have not been provided with legal counseling by their lawyers before giving their statement. When a lawyer is present to listen in during an inquiry, better protection can be achieved. para. 127. Ibid., para. 128. Ibid., para. 131. Ibid., paras. 132–137; 136. During 2005–2008, Thailand developed concepts and strategies in recognizing the right in the status of persons by law, which are clear and can be referenced, for use in the verification of the identities and status of such groups of persons. There was a drive to push the process of acknowledging (1) Comprehensive recognition of the right in the status of persons by law, from birth registration, residence registration and death registration (2) Recognition of educational rights (3) Recognition of the right to public health services, and (4) Justice system. para. 136.

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126 Ibid., paras. 139–140. 127 Ibid., para. 145. 128 Ibid. 151. There are certain laws in Thailand which affect the people’s freedom of expression, namely the Martial Law Act b.e. 2457 (1914) Section 6, Section 9, and Section  12, and the Emergency Decree on Public Administration in Emergency Situations b.e. 2548 (2005) Section 9 and Section 11. Nevertheless, these laws are announced and ­enforced specifically in situations pertaining to political demonstrations which have tendency to become violent, and in the current unrest situations in the southern border provinces, which are considered necessary to enforce these special laws to prevent the escalation of the problem’s violence. However, the State has exercised more caution in its operation not to affect the people’s rights and liberties, a policy direction to which Thailand always attaches importance. 152. The Thai society has significantly become more alert about the freedom of expression amidst specific circumstances of political polarization. During such times, there was a development to establish an organ to manage the country’s resources for communication, namely telecommunications and community radio. The Constitution also attaches importance to the issue of freedom of expression extensively, which leads to the issuance of the Organic Act on Public Referendum b.e. 2552 (2009) and the regulation of interference in the mass media by using political influence by p ­ rohibiting politicians from holding shares in mass media enterprises. paras. 151–152. 129 Ibid. 155. Various measures have been taken, including the setting up of a committee in the Royal Thai Police headquarters. This police committee functions in additional screening to ensure that each charge has legal merit for further proceeding through the application of an appropriate set of criteria, which is a special procedure, not under normal legal procedures taken by line police officials. para. 155. 130 Ibid., paras. 156–157. 131 Ibid., para. 158. 132 Ibid. 160. Thailand endeavours to ratify the International Labour Organization (ilo) Convention No. 87 on Freedom of Association and Protection of the Right to Organise of 1948 in the near future. The Ministry of Labour has initiated the revision of the Labour Relations Act b.e. 2518 (1975) and the State Enterprise Relations Act b.e. 2543 (2000) to be in line with the principles of the said Convention. Up to present, amendment has been made to the State Enterprise Relations Act b.e. 2543 (2000), now under scrutiny of the Task Force for the Revision of Labour Relations Laws. In addition, there was an announcement made, namely the Announcement of 324/2552 dated 27 October 2009 on the Establishment of the Task Force to Coordinate the Implementation to Ratify the ilo Convention No. 87 and No. 98, with the Permanent Secretary of the Ministry of Labour as Chairperson in reviewing the guidelines on accelerating and preparing all sectors to be ready for the ratification

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of the ilo Convention No. 87 and No.98. This Task Force held its first meeting on 2 November 2009. para. 160. 133 Ibid., paras. 162–163. 134 Ibid., paras. 164–170. 135 Ibid., para. 171. 136 Ibid., para. 173. 137 Ibid. 174. The Constitution Section 66 and Section 67 provide that the meaning of community rights shall include cultural rights. The definition of community rights by this Constitution shall include cultural rights of local communities, which may differ from cultures at the national level, and local communities having community rights may not necessarily be only original communities. The meaning of “holders of community rights” is more clearly understood under this Constitution, even without specifying the word “ethnicity” as being the “holder of cultural rights.” Findings from the study on provincial policies and the study by the Ministry of Culture, which show recognition of the status as holders of cultural rights of the various ethnic groups in Thailand. para. 174. 138 The cases where courts have refer to international conventions/instruments are rare. See further: Chalermpon Ake-uru, “The Role of the Constitutional Court in the Protection of the Rights and Liberties of the People: The Case of Thailand”, in The Constitutional Court under the Rule of Law in a Democracy under a Constitutional Monarchy (Sarn Ratthathammanun Pai Tai Luck Nitidharma Nai Karn Pokrong Raborb Prachathipathai Unn Mee Pra Mahaksatriya Tsong Pen Pramook) (Bangkok: Sathaban Ratthathammanun Suksa, 2013), pp. 37–87. For example, in ruling 12/2555 of the Constitutional Court: “ Section 54 of the Direct Sale and Direct Marketing Act 2002 specifically that part which presumed guilt on the part of a managing director, manager or any person responsible for the operation of the juristic person without proof that he or she had a part in the commission of the offence of the juristic person” was found to be contrary to Section 29(2) of the Constitution and thus unenforceable per Section 6; the court referred to Article 11 of the Universal Declaration of Human Rights and the Covenant (iccpr). Ibid., pp. 66–67. See Banjerd Sinkaneti et al., Sinkaneti, Banjerd et al., Monitoring the Constitutional Legitimacy of Legal Provisions Affecting Human Rights (Garn Truat Kwam Chop Duay Ratthathammanun Kong Bot Banyat Hang Kotmai Ti Kratop Tor Sittimanusyachon) (Bangkok: Office of the Constitutional Court, b.e. 2555), pp. 18–19 on the following case: In Administrative Court case 607/608/2549, elections were annulled because the electoral ballot box was visible in breach of the principle of secret ballot, thus in breach of Section 104 of b.e. 2540 Constitution and the Universal Declaration of Human Rights. (in Thai) For Election Case, see also: Administrative Court ruling 607–608/2549 (16 May b.e. 2549), Photiphong Banluewong et al., v Electoral Commission, JULNITI Journal, year 3 (Part 4) (July–August b.e. 2549), pp. 80–88 (in Thai). See also later Chapter in this study on the issue of disabilities where the Constitutional Court referred directly the crpd: Constitutional Court ruling 15/2555, Royal Gazette, Vol. 129, Part 100 Kor (18 October b.e. 2555), pp. 94–101. (In Thai).

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139 See next Chapter, cerd Committee Concluding Observations. 140 For instance, academic seminar on accession to Protocols organized by the Ministry of Justice, Bangkok, 5 August 2014. 141 Supreme Court President Recommendation on Emergency Decree b.e. 2548, Office of President of the supreme court, http://www.opsc.coj.go.th/userfiles/file/ 4_2556_4_06.pdf, 2011, (accessed 22 October 2015).(in Thai). 142 Constitutional Court case on Article 68: Constitutional Court Judgement 18–22/2555 and 15–18/2556, Somjet Boonthanom et al., v President of Parliament, The Cabinet et al., Royal Gazette, Vol. 129, Part 118 Kor (13 December b.e. 2555), pp. 1–31(in Thai). The court interpreted Article 68 of the 2007 Constitution to mean that individuals can exercise their right to protect the Constitution by accessing the Court directly without having to go through the Attorney-General beforehand. 143 See Second report of Thailand, supra note 90. 144 For instance, derogations were declared to the un in April 2010. Declaration of a Severe Emergency Situation in the Areas of Bangkok; Nonthaburi ­Province; Muang, Bang Phli, Phra Pradang, Phra Samut Chedi, Bang Boh and Bang Sao Thong Districts, Samut Prakan Province; Thanyaburi, Lad Lumkaew, Sam Kok, Lam Luk Ka and Khlong Luang Districts, Pathumthani Province; Phutthamonthon District, N ­ akhon Pathom Province; and Wang Noi, Bang Pa-in, Bang Sai and Lat Bua Luang D ­ istricts, Ayutthaya Province. It appears that a group of persons has taken actions causing disturbances and leading to disorder within the country through incitement and instigation by verbal and other communicative means – which is inconsistent with the purposes of the Constitution and the law – in order to cause turmoil or defiance amongst the public to the extent that it has resulted in unrest in many locations and encourage the carrying out of unlawful actions by instigating the public to rally unlawfully, thereby obstructing the normal way of life of the general public and causing the majority of the public to be distressed, affected and anxious over possible danger to their lives, bodies and properties; using force to resist the enforcement of laws by state officials, as well as using certain facilities to disseminate distorted information to cause misunderstanding so as to instigate actions to cause unrest in various locations. Furthermore, certain groups of persons have been continuously causing disturbing incidents with the purpose of causing damage and danger to life, body and property. Given such a protracted situation with increasing breaches of the law, there are reasons to believe that violent actions will be carried out, which will more seriously affect national security so as to cause unrest in the country and inflict harm or danger to the lives, bodies and properties of innocent people. Such actions by these groups of persons are not peaceful assembly and contravene the provisions of the law and the Constitution of the Kingdom of Thailand, having impact on the administration of the state and confidence in the economy and affecting public order, state security as well as democratic development process and the exercise of rights and liberties of innocent people. It is therefore of urgent necessity to quickly resolve and put an end to these problems. By the power vested under Sections  5 and 11 of the Emergency Decree on Public Administration in Emergency Situation of b.e. 2548 (2005), a law which contains c­ ertain

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148 149

150 151

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provisions relating to the restriction of individual rights and freedoms, permissible under Section 29 in conjunction with Sections 32, 33, 34, 36, 38, 41, 43, 45 and 63 of the Constitution of the Kingdom of Thailand by virtue of powers given in accordance with the law, the Prime Minister, with the consent of the Council of Ministers, therefore declares a severe emergency situation in the areas of Bangkok; Nonthaburi Province; Muang, Bang Phli, Phra Pradang, Phra Samut Chedi, Bang Boh and Bang Sao Thong Districts, Samut Prakan Province; Thanyaburi, Lad Lumkaew, Sam Kok, Lam Luk Ka and Khlong. Luang Districts, Pathumthani Province; Phutthamonthon District, Nakhon Pathom Province; and Wang Noi, Bang Pa-in, Bang Sai and Lat Bua Luang Districts, Ayutthaya Province. To become effective forthwith. Announced on 7 April b.e. 2553 (2010) (signed) Abhisit Vejjajiva Prime Minister No. 56101/242 Thailand: Notification under Article 4(3), C.N.375.2010.TREATIES-13 (Depositary Notification) (10 June 2010). Treaties.un.org [Homepage on the internet], United Nations Treaty Collection, https://treaties.un.org/doc/Publication/CN/2010/CN.375.2010-Eng.pdf, (10 June 2010) (accessed 23 November 2015). See further, Thailand’s rejection of the anti-death penalty recommendation under the un’s Universal Periodic Review (upr). www.ohchr.org. Third National Human Rights Action Plan (Bangkok: Ministry of Justice, 2014). The Juvenile Courts Act 2010 basically opens the door to “diversion” so that courts can channel juvenile offenders into rehabilitation in communities rather than be detained in reforms schools. See: Act on the Juvenile and Family Courts and Procedure concerning Juveniles and Families b.e. 2553, Royal Gazette, Vol. 127, Part 72 (Kor) (22 November b.e. 2553), pp. 12–73 (in Thai). For magnetic bracelets, see Corrections Department. http://www.moj.go.th/media/k2/ attachments/20140716-144334.pdf (accessed 23 November 2015). The Domestic Violence Act has been criticized for opening the door to too much family mediation rather than sanctions against persons committing violence in the family. See cat report also below. Amendments of the Civil Code to equalize grounds for divorce in 2007(Issue 16) b.e. 2550, Royal Gazette, Vol. 124, Part 53 Kor (12 September b.e. 2550), pp. 14–16 (in Thai). While the option of a quota for women was discussed and rejected in the drafting of the new Constitution in 2015, the idea was floated that political parties were expected to field women as a proportion of the candidates for the prospected elections. Transgender and military case. Administrative Court case, Kadhi Mai Lek Daeng 1540/2554:, Samart Meecharoen v Ministry of Defence, where the Court ordered the defendant to change the wording of the military form which had classified transgendered persons as suffering from permanent mental illness. admincourt.go.th [internet home­ page http://www.admincourt.go.th/attach/news_attach/2011/09/press13092554.pdf (accessed 28 October 2015).

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153 The Rohingya problem resurged in 2014–5 with various boatloads of arrivals intermixed with human trafficking; numerous victims were found in clandestine camps in the South of Thailand. The authorities were trying to take stronger measures against the traffickers and related officials with scores of arrest in May 2015: see Bangkok Post 18–20 May 2015. For news, BBC.com [Homepage on the internet], Police find dozens of graves in Thailand jungle camp, http://www.bbc.com/news/world-asia-32547552, 1 May 2015 (accessed 23 November 2015). 154 Re the plight of the Uighurs: Reuters and dpa, Govt confirms deportation of 109 Uighurs to China, http://www .bangkokpost.com/news/general/618344/govt-confirms-deportation-of-109-uighurs-to -china, 9 July 2015 (accessed 28 October 2015). 155 On nationality verification and migrant workers: see: www.mapfoundationcm.org/… migration…/37-process-for-nationality-verification.htm (accessed 24 January 2016). 156 Supreme Administrative Court, Khadi Mai Lek Dum 299/2548, Khadi Mai Lek Dang 117/2548, re case concerning State administrative officials issuing illegal orders revoking the Thai nationality granted to hundreds of villagers of Mae Ai district. The court ordered restitution of the nationality to the villagers: vwww.nationmultimedia.com/2005/08/24/…/ national_18417257.html; www.admincourt.go.th/attach/news_attach/2007/…/domeeng .pdf (accessed 24 January 2016). 157 Reconciliation Commission, Report of the National Reconciliation Commission (nrc) : Overcoming Violence Through the Power of Reconciliation (Bangkok: National Reconciliation Commission, 16 May 2006). Geneva-academy.ch [Homepage on the internet], Report of the National Reconciliation Commission (nrc) : Overcoming Violence Through the Power, http://www.geneva -academy.ch/RULAC/pdf_state/NRC-Report-Overcoming-Violence-through-the-Power -of-Reconciliation-nrc-report-en.pdf, 16 May 2006 (accessed 23 November 2015). 158 E.g. cases concerning ethnic communities being evicted from the land referred to by the cerd and escr Committees in later Chapters of this study. Also Prachatai.com [Internet homepage], Junta’s attempt to ‘return forest’ hurts the poor, http://www.prachatai.com/english/node/4441, 24 October 2014, (accessed 28 October 2015).

chapter 5

The Convention on the Elimination of All Forms of Racial Discrimination (cerd) and Thailand Introduction The cerd is the oldest of the nine core human rights treaties and was finalized in 1965.1 There are seven substantive articles, followed by others dealing with the monitoring Committee and other procedural matters. Importantly at the turn of the millennium, a global conference took place in Durban resulting in a global action plan against racism which is also pertinent to the measures needed to counter racial discrimination and related practices.2 A summary of the cerd’s main provisions is provided in Table 13. Importantly, Article 1 offers a definition of racial discrimination with various stipulations: 1. In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing, of human rights and fundamental freedoms in the political, economic, social cultural or any other field of public life. 2. The Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens. Table 13

cerd: Summary of contents.

Article 1 definition of racial discrimination Article 2 condemnation of racial discrimination Article 3 condemnation of racial segregation Article 4 prohibition of hate speech concerning racial discrimination Article 5 equality of treatment Article 6 protection under the law Article 7 education Source: Author’s own table derived from OHCHR, The Core International ­H uman Rights Treaties. © faculty of law, chulalongkorn university, 2017 | doi 10.1163/9789004326675_006

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3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality. Article 2 calls for condemnation of racial discrimination, including rescinding law which might otherwise promote the practice, while Article 3 condemns and prohibits racial segregation and apartheid. Article 4 condemns hate speech linked with racial discrimination, including per Article 4(a): Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provisions of assistance to racist activities, including the financing thereof. Article 5 posits equal treatment on civil and political rights such as security of person, treatment before the courts, freedom of movement, nationality, freedom of expression and assembly, and economic, social and cultural rights, such as the right to work, right to housing, medical and education. Article 6 advocates protection under the law and remedies in the case of discrimination, while Article7 calls for education and training for tolerance. Thailand acceded to the cerd on 23 January 2003. It entered an interpretative declaration that the Articles of cerd would not apply beyond the framework of Thai laws, and two reservations: on Article 4 (on the need to prohibit hate speech) and Article 22 (on dispute settlement by the International Court of Justice).3

Reporting Process

Implementation The combined initial to third report of Thailand was finalised in 2008 and was published by the un in 2011.4 The dialogue with the cerd Committee took place in 2012.5 After an introduction, the report responded to each of the substantive provisions of the cerd. It should be noted that at the time of report preparation, some of the authorities were wondering whether the report should cover non-nationals, as at first glance Article 1(2) of the cerd seemed to allow some distinction between nationals and non-nationals. It was the General Comment on this issue from the cerd Committee which enabled

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an understanding that the cerd and related report must cover nationals and non-nationals, and there was/is a need for the report to examine the state and status of the latter.6 The contents of the report are as follows: 1. The report began by recognizing the lack of data on races by age, group or gender.7 It then noted the great diversity of groups and languages in Thailand as follows: 6. Thailand is situated in Southeast Asia, an area inhabited by a great diversity of people ethnically in the world. The population of Thailand comprises various ethnic groups for over 700 years in the area from the Chao Phraya River flat land delta up to the river’s origin on the high plateau of the Northeast (Esarn) and to the upper part of Malayu Strait. According to the research on Ethnolinguistic Maps of Thailand in 2005 to study the combination of ethnic groups of people in Southeast Asia according to their main language families, there are five main language families that belong to a total of 62 ethnic groups: (1) Tai Language Family with 24 ethnic groups (2) Austroasiatic Language Family with 22 ethnic groups (3) Sino-Tibetan Language Family with 11 ethnic groups (4) Austronesian or Malayopolynesian Language Family with 3 ethnic groups (5)  Hmong-Mien Language Family with 2 ethnic groups.8 There was a periodic census on the issue.9 2.

3.

The report then proceeded with a discussion of persons on highlands, chao lay or sea gypsies, malayu descended Thais, ethnic groups in the Northeast, displaced Thais, unsurveyed persons, rootless persons, alien population, displaced persons from neighbouring countries with permanent residence status, illegal immigrants exempted to stay temporarily, and other illegal immigrants repatriated under the country’s immigration act.10 With reference to Article 1 of the cerd, while there was no specific law on the subject, the country had an infrastructure of laws pertinent to the issue, expressed as follows: 41. Despite the fact that Thailand has no laws that respond directly to the Convention’s articles on racial discrimination, there are existing social, political and public administration infrastructures which are conducive to its compliance with the Convention. Socially, Thailand is a mixed ­society, with no division nor discrimination on the basis of race, ­ethnicity

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or religion. None of its existing laws is indicative of racial division or rights limitation towards any group of citizens to the extent of causing violent racial conflict. Moreover, the country’s political structure under the Constitutional Monarchy has a number of mechanisms and measures with regard the three columns of power, namely the Legislation, the Judicial and the Administration, as well as other relevant measures, which are conducive to racial harmony of its citizens. It is also noteworthy that the Constitution of Kingdom of Thailand b.e. 2540 (1997) and the Constitution of b.e. 2550 (2007) both contain articles on the protection of human dignity, rights and liberties: (Section 4) on equality of protection for every citizen, male and female, regardless of origin of birth, gender, religion; (Section 5) on prohibition of unfair discrimination against any person for reasons of differences in birth origin, race, language, gender, age, physical condition or health, individual status, economic or social status, religious belief, educational background, or political opinion that does not violate the Constitution. Both Constitutions have provisions on special measures, stating that, “… the measures set by the Government to eliminate obstacles or to enable a person to exercise one’s rights and liberties equally with others are not regarded as an unfair discrimination practice …” (Section 30), which corresponds with Article 1, paragraph 4 and Article 2, paragraph 2 of the Convention.11 4.

5.

The response to Article 2 was as follows: 44. Thailand has not made an official declaration in writing to condemn racial discrimination. But its Constitution guarantees the protection of rights and liberties, as well as equality for every Thai citizen of all origins and religions. Thailand also has a state policy direction that aims to promote good relations and equality among its people, and cooperation with other nations in upholding international justice and world peace. This is evident in all Thailand’s Constitution laws dating back to the 1974 Constitution and even before. Furthermore, Thailand has no policy or law that divides its people by class, race or nationality under the democratic system and in Thai society. It does not support or condone any act of racial discrimination by any person or organization.12 There were also some policies which militated against discrimination, such as the country’s national economic and social development plans and the human rights action plan. The response to Article 3 was that the country did not condone racism or apartheid.13

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On Article 4, there was no law punishing propaganda, even though the Criminal Code might be used against it. Other laws of relevance included the Radio and Television Broadcasting Act b.e. 2498 (1955), Regulations on Broadcasting 1992, 1994, and Consumer Protection Act b.e. 2522(1979).14 The report added that its reservation to Article 4 was influenced by the fact that a law would only be enacted to implement Article 4 when necessary, and that there were difficulties facing “positive measures” (implying affirmative action) on this front.15 7. On Article 5, there were various legal provisions on non-discrimination, e.g. the Constitution on access to law and on the right to security, the Criminal Code, and Witness Protection Act b.e. 2546 (2003), while political participation such as in elections was the right and duty of Thai citizens.16 Examples of implementation of civil/political rights per Article 5 of the cerd included: the nationality law based on jus sanguinis, restoration of Thai nationality earlier revoked by executive decree, universal birth registration and temporary residence for migrants.17 8. Under Article 5, the issue of shelter raised some questions, particularly the link with reserved forest areas and the claims of ethnic groups living in these areas. Various laws, such as the National Protected Forests Act b.e. 2507 (1964) and the Wildlife Conservation Zone Act b.e. 2507 (1964), aimed at controlling deforestation, reforestation and conservation and rehabilitation of forests and wildlife, conflicted with the claims of ethnic groups. There were also policy directives on the issue.18 9. Under Article 5, the situation of migrant workers was based upon registration and nationality verification, after which those who were able to validate their nationality would be permitted to work in Thailand temporarily and accorded labour-related protection and services. There were efforts to regularize status by enabling illegal workers to come forward and register as workers.19 10. Under Article 5, asylum seekers were particularly cared for by unhcr.20 The problem of trafficking was responded to – by a range of measures, including the law against trafficking and mous with neighbouring countries to help the victims. The country was also intending to ratify the un Protocol against human trafficking.21 11. Per Article 6, various laws and measures offered remedies in times of breach, including a law to compensate victims of crime 2001 as well as a law to protect witnesses 2003.22 12. A number of programmes and training courses responded to the ­educational advocacy premised on Article 7.23 With regard to implementation of the Durban Plan of Action, a variety of measures in the health,

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education, law and administration fields helped to promote respect for diversity: these included universal health care and access to compulsory education primary for all, irrespective of status, and the application of labour protection law based on non-discrimination.24 Dialogue and Recommendations In the list of issues which the cerd committee sent to Thailand before the oral dialogue, the Committee particularly wished to know the law and policy framework, including court cases.25 It also sought information on the situation of ethnic groups and non-citizens, and dissemination measures. The Thai delegation had a dialogue with the Committee in Geneva in August 2012 and this was followed by the Concluding Observations of the Committee which underlined the following: 1.

2. 3.

The Committee commended Thailand for the following measures: “… (a) The adoption of the 2012 Comprehensive Strategy on Resolving the Problems of Irregular Migrants; (b) The adoption of the 2008 Civil Registration Act (No. 2), which allows for the registration of all persons born in the State party, irrespective of the origin or status of the parents; (c) The allocation of moneys from a public budget to compensate the victims of the violence in the southern border provinces and to implement the Development Plan for the Special Area in the Southern Border Provinces for 2009–2012;(d) The adoption of the 2008 Prevention and Suppression of Human Trafficking Act. 5. The Committee notes with satisfaction the ratification by the State party of two Optional Protocols to the Convention on the Rights of the Child, namely on the sale of children, child prostitution and child pornography, and on the involvement of children in armed conflict, in 2006; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in 2007; and the Convention on the Rights of Persons with Disabilities, in 2008. 6. The Committee appreciates the consultative approach adopted by the State party in the preparation of the State report.”26 It expressed concern in regard to the fact that the country had not taken adequate measures to implement the Convention, noting the dualist system at the national level27 It called for withdrawal of the interpretative declaration and reservations,28 underlining that Article 4 was mandatory and there was a need to criminalize violations of its provisions.29

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It advocated the requirement of a specific law to define and prohibit racial discrimination, covering both direct and indirect discrimination in all fields of public life.30 It called for information on court cases concerning implementation of the Convention, as well as public dissemination of the Convention and access to remedies.31 It advocated equality in civil and political rights, noting difficulties concerning birth registration and access to citizenship which should be ­overcome. It called for the country’s accession to international treaties concerning statelessness.32 It explained that pursuant to the principle of self-identification, it was for the ethnic groups to identify their identity rather than for the authorities to categorize their identity. It also called for accession to the ilo treaty on the issue of rights of indigenous peoples.33 The sensitive relationship with natural resources was identified as needing review and to respond to the economic, social and cultural rights of the variety of ethnic groups. The Committee underlined the need for participation by the latter, particularly based on free and prior informed consent in decisions affecting their livelihood.34 It impliedly disagreed with the Thai Constitutional court decision which had upheld the right of the authorities to apply the forestry laws to ethnic groups resulting in the latter’s displacement: Ethnic groups living in forests 16. The Committee is concerned that the various forestry and environment protection laws may have a discriminatory effect on ethnic groups living in forests. The Committee is also concerned that it has not been assured how the free and prior informed consent of those groups is guaranteed in decision-making processes affecting them (arts. 1, 2 and 5). Notwithstanding Constitutional Court decision No. 33/2554 of November 2011, the Committee urges the State party to review the relevant forestry laws in order to ensure respect for ethnic groups’ way of living, livelihood and culture, and their right to free and prior informed consent in decisions affecting them, while protecting the environment. Vulnerable ethnic groups 17. The Committee is concerned about the inadequate access to social welfare and public services by certain ethnic groups because of language barriers and the limited availability of such services where these groups live. The Committee also regrets the lack of data to monitor the progress achieved in improving their situation (arts. 5 (e) and 2, para. 2).

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The Committee calls on the State party to continue efforts aimed at improving the enjoyment of economic and social rights by all ethnic groups… 18. The Committee notes with concern that some ethnic languages in the State party are at risk of disappearance. Moreover, while taking note of pilot projects announced by the State party for the teaching of ethnic languages in schools, the Committee remains concerned that many ethnic children have limited opportunities to learn their language (art. 5 (e)). The Committee calls on the State party to strengthen efforts to protect and conserve ethnic languages and to allocate the necessary resources for the promotion of the teaching of ethnic languages in schools.35 9. The Committee expressed concern at negative stereotypes and prejudices about ethnic groups that are conveyed by the media (art. 7) and called for countermeasures such as awareness raising via the media.36 10. It raised the issue of discrimination facing Malayu women who are found in the South of Thailand.37 11. The application of security laws in Southern Thailand, and the question of racial profiling, gave rise to much concern.38 12. The issue of migrant workers was both general (pertaining to all) and specific (pertaining to women), particularly in regard to discrimination: Exploitation of migrants 22. While noting the measures taken by the State party aimed at curbing exploitation and abuse of migrant workers and the applicability of the Labour Protection Act to all workers irrespective of their immigration status, the Committee is nonetheless concerned at reports of abuse and exploitation of migrant workers, in particular of those with irregular status (art. 5 (e)). Bearing in mind its general recommendation No. 30 (2004) on discrimination against non-citizens, the Committee recommends that the State party explore the need for specific protections for migrant workers in addition to those provided for by the Labour Protection Act and revise the system for granting and terminating work permits so as to reduce migrant workers’ vulnerability to exploitation and abuse by their employers. The Committee also recommends that the State party assess the effectiveness of mechanisms in place to receive complaints of violation of labour rights and their accessibility by migrant workers. Discrimination against migrant women 23. While noting the explanation provided by the State party according to which the draft regulation requiring the return of pregnant migrant

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women to their country of origin to give birth was still under discussion, the Committee remains concerned that such measures would constitute a discrimination against migrant women (art. 5 (e)). The Committee recommends that the State party abandon the proposal to return pregnant migrant women to their country of origin to give birth and ensure that regulations and legislation on migrants respect their human rights. The Committee also requests that the State party provide in its next periodic report information on access to health care by documented and undocumented migrant women.39 13. It sought more information on measures against human trafficking.40 14. It called for protection of asylum seekers and related refugee screening and assistance, such as to operationalize the country’s Provincial Admission Board to screen cases, citing in particular the plight of Rohingyas and encouraging the country to accede to the refugee instruments.41 15. It advocated accession to other human rights treaties, such as on migrant workers and on enforced disappearances, and more follow up of the ­Durban Plan of Action, as well as a declaration by the country to allow individual communications under Article 14 of the cerd.42 Follow Up After the dialogue with the cerd Committee and the issuance of the Concluding Observations, the Thai authorities sent a follow up report to respond to the concerns of the Committee (sent to the un in 2013 and published by the un in 2014) particularly in regard to three areas: Malayu women, the situation in the South and the position of asylum seekers. Highlights may be provided as follows: 1. 2.

In regard to Malayu women, a gender equality bill is being discussed, together with capacity building, training and funding.43 The situation of the South is responded to as follows: The Enforcement of Special Legislation in the Southern Border Provinces (sbps) 25. In light of the increasing intensity of the violent situations in the sbps since 2004, Thailand has enforced special security legislation in order to cope with the situation in a timely manner, ensuring security for the public as a whole. The special legislation was also necessary to address diverse and complicated problems as well as the violence inflicted upon the public and state officials. The application of the regular ­Criminal Code and the Criminal Procedural Code alone is inadequate because their provisions are limited in relation to the collection of ­evidence,

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detention power, investigation and inquiries, as well as court hearings and proceedings. Moreover, the special legislation is required to facilitate officers’ performance of their duties. 26. Three special security laws have been promulgated for enforcement in the sbps: the Martial Law Declaration Act b.e. 2457 (1914); the Contingency Public Administration Emergency Decree b.e. 2548 (2005); and the Internal Security Act b.e. 2551 (2008). The deliberation upon the enforcement of the special security legislation is conditional upon specific situations and the intensity of particular incidents which may vary by each locality. At this point, the legislation constitutes only supplementary legal measures rather than the substitutes for the penal justice procedure. ­Additionally, in practice, security agencies have issued regulations, procedures and guidelines to serve as practical guidelines for officers for effective and efficient functioning. The aims of these detailed arrangements are to minimize any potential negative impact vis-à-vis members of the public and to promote respect for human rights. These guidelines apply to such practices as the performance of duties on the parts of the officers, searches, and arrests, and special attention is paid to local religious principles and culture.44 Training is also provided to the relevant officers to facilitate compliance with human rights. 3. In regard to assistance of asylum-seekers, particularly Rohingyas from Myanmar, the measures include: In January 2013, more than 2,000 Rohingya people travelled in an irregular manner to Thailand. Although their entry into the country constitutes illegal entry pursuant to the Immigration Act b.e. 2522 (1979), Thailand designated agencies to supervise and make necessary arrangements to provide assistance to these Rohingyas in a systematic manner. 44. Thailand has developed both short-term and long-term measures to ensure that the Rohingya issue is dealt with in accordance with humanitarian principles. Long-term measures are implemented by the ­Office of the National Security Council (nsc), the focal point agency for operations in relation to the Rohingyas pursuant to the strategy for the resolution of the irregular migrant issue as per the Cabinet Resolution dated 24th April 2012. In this regard, the information on this matter was presented to the Committee on the Elimination of Racial Discrimination in Geneva during the last verbal presentation of Thailand’s report in A ­ ugust 2012, during which the aforementioned strategy for

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the ­supervision of the irregular migrant handling was articulated and highlighted as being founded upon humanitarian principles. Thailand has been treating Rohingya immigrants in the same manner as displaced persons from its neighbouring countries, by relaxing certain rules to enable them to stay in Thailand temporarily, and subsequently encouraging and facilitating their return trips back to their countries of origin or to a third country as appropriate on a voluntary basis. In this regard, Thailand has been undertaking measures in tandem with the United Nations High Commissioner for Refugees to ensure safety of the Rohingya immigrants.45 It is necessary to wait for the next cycle of reporting to see the response of the cerd Committee to the information provided above. In the meantime, there are various concerns to be addressed in relation to implementation and follow up, as below.

Key Challenges

Definition/Implementation On analysis, a clear lacuna is that there is still no definition of the concept of racial discrimination in Thai law, despite the general provision on non-­ discrimination under the Constitution.46 Until 2015, various attempts to draft a law on non-discrimination did not bear fruit. In 2015 a gender-discrimination related law was passed, but it did not cover the issue of racial discrimination.47 There is also a variety of Implementation issues needing strengthening – ­relating to matters of law and beyond law and policy, such as the redress in the courts and access to justice/remedies, the quality of law enforcers, compromises needed on resource holdings, sharing and utilization, and participation of the various groups in enjoying their rights. In the concluding observations above, the cerd Committee was also concerned that the approach taken by the country might impede integration of international standards into the national setting. Thus law reform is needed to integrate the cerd definition into Thai law. Declaration/Reservations The cerd Committee called for withdrawal of the declaration and reservations with the implication that a declaration that an international treaty is ­subject to local law is generally too broad and should be avoided. With regard to the

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reservation to Article 4, the indication from the Committee is that the Article is mandatory and there is a need for a specific law to prohibit ­incitement to racial hatred. These recommendations have been discussed locally with a view to follow-through.48 Self-Identification The flurry of different groups listed in the country’s report surprised the Committee in regard to its complexity. On a related front, the notion of self-­ identification by ethnic groups has yet be fully understood in the country. The fact that ethnic groups should be able to self-identify rather than be categorized by the authorities requires much political will, clarification and capacity building at the national and local level, bearing in mind that the political history of the country attests to limited political space and centralization rather than decentralization. Constraints on Civil and Political Rights While some constraints on these rights are permissible in international and national law, the spectrum of national security laws gives rise to concern in their constraining implications.49 This is particularly pertinent to Southern Thailand. As applied particularly in the South, the more recent Internal Security Act is milder than the martial law and emergency decree. The shift towards the former is advisable as it is more transparent. Similar lessons can be learned from the limited application of the iccpr’s provisions as discussed earlier.

Economic, Social and Cultural Rights :The Environment, Forest, Land, Resources The competition for natural resources clearly affects the livelihood of many groups. The most evident situation is where the State’s laws (such as on forestry or natural parks/reserves) overlap with land traditionally occupied by ethnic groups. The Committee was aware of various court cases on this issue in Thailand, particularly via non-governmental reports. The message from the Committee is that there should be no forced displacement of these groups. The record of the national courts in responding to the rights of these groups also varies (some cases justify eviction).50 The preferred orientation is thus that communities which have been inhabiting the land for a long time, for example ethnic groups/indigenous communities, should only move out of their locations if there is prior, free and informed consent, and attenuating measures are also needed.

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Gender This issue recurs and is raised on several matters, such as the treatment of Malayu women and women migrant workers. There are also links with the issue of violence and human trafficking. The totality of women’s rights thus needs to be strengthened in keeping with international standards. The rights of women within ethnic communities need more visibility. The 2015 law on gender referred to above also needs implementation with ethnic sensibility. Minorities/Indigenous Communities Should some ethnic groups in Thailand be seen as minorities or are they indigenous peoples ? Some groups do not wish to be classified as “minority,” but wish to be seen as indigenous; this is the case of hill tribes, for example. The Muslim community in Southern Thailand regards itself as the majority in that region rather than minority. Yet, the notion of “indigenous” is difficult nationally especially if there is a tendency to see the majority group (Thai) as the sole indigenous group.51 This invites a broader understanding of the rights of different peoples in the country. Non-Thais: Migrant Workers, Asylum Seekers In its concluding observations, the cerd Committee advocated a fairer deal for migrants workers as well as assistance and protection of asylum-seekers. The cerd provides a good opportunity to test these issues, given that the country is not a party to the refugee conventions nor the treaty on migrant workers. Particularly on the Rohingyas, the preferred option should be to follow the practice Thailand has adopted for other asylum-seekers from Myanmar: screen them impartially, and offer them temporary protection and shelter, pending other longer term solutions, with an emphasis also on shared international responsibility and support.52 On another front, it may be added that coverage of these groups is also offered, to some extent, by the other core human rights treaties to which Thailand is a party and the message underlining protection and assistance of non-Thais should resonate transversally. In addition, Thailand is already a party to several ilo Conventions which may have bearing on migrant workers. For example, ilo Convention No. 122 (on employment policy) to which the country is a party offers space for monitoring employment policy which may also cover the state and status of migrant workers.53 This invites a comprehensive appreciation of all the treaties which may bear on the issue and which are at hand. Thus the call to apply them well to ensure nondiscrimination and guarantee respect for fundamental rights and freedoms inherent in all persons irrespective of their origins.

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1 The Convention has 25 articles and no Protocol. See further: www.ohchr.org. 2 Durban World Conference: Un.org [Homepage on the internet], World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance Declaration Having met in Durban, South Africa, from 31 August to 8 September 2001, http://www.un.org/WCAR/durban.pdf, 31 January 2002 (accessed 23 November 2015). 3 For Thailand’s declaration and reservations, see: Thailand Interpretative declaration: General Interpretative Declaration The Kingdom of Thailand does not interpret and apply the provisions of this Convention as imposing upon the kingdom of Thailand any obligation beyond the confines of the Constitution and the laws of the Kingdom of Thailand. In addition, such interpretation and application shall be limited to or consistent with the obligations under other international human rights instruments to which the Kingdom of Thailand is party. Reservation 1. The Kingdom of Thailand interprets Article 4 of the Convention as requiring a party to the Convention to adopt measures in the fields covered by subparagraphs (a), (b) and (c) of that article only where it is considered that the need arises to enact such legislation. 2. The Kingdom of Thailand does not consider itself bound by the provisions of Article 22 of the Convention. United Nations, Treaty Series, Vol. 660 (un: New York, 1966), p. 195. 4 Thailand’s report: un Doc.CERD/C/THA/1-3 (October 2011). 5 The result was the Concluding Observations of the cerd Committee: CERD/C/THA/CO/1-3 (November 2012). 6 General Recommendation No. 11 on Non Citizens (13 March 1993). 7 Thailand’s report, supra note 4, para. 5. 8 Ibid., para. 6. 9 Ibid. 9. Thailand’s population census is collected every ten years (the latest in 2000), while a survey on population change is carried out in the period between each population census(five years’ period) (the latest one in 2005–2006). There is no classification of population number by racial or ethnic group. As Thailand is a pluralistic society, with a good mix of races and cultures for a lengthy period of time in history, it has a wide diversity in terms of population and culture, making it difficult to specify any single ethnicity directly. It is estimated that 85% of Thailand’s population is of Thai ethnicity, which has intermingled with various ethnic groups throughout the years. The rest are other ethnic groups from the five language families and other races found living in Thailand, e.g. Japanese, Korean, Indian, Sikh, Arab, European, etc. and other alien population under Thailand’s care and responsibility. 10. The information to be presented in this report on Thailand’s implementation of the International Convention on the Elimination of All Forms of Racial Discrimination considers the population groups that may be at risk of losing their rights, having their rights neglected or their human rights violated, especially owing to racial causes. These are people who belong to different ethnic groups, a number of Thais, and alien population. According to the data gathered from the six focus groups organized to hear problems of

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ethnic groups in the five regions of Thailand in 2006, the situation of problems faced by these people can be classified into four main groups: (a) Ethnic Groups – consisting of The Highlands people, The “Chao Lay” or “Sea Gypsies,” the Malayu-descended Thais, and other ethnic groups; (b) Displaced Thais; (c) Persons overlooked by surveys (“Unsurveyed Persons”), Persons with Identification Status Problem, and Rootless Persons; (d) Alien Population – consisting of Displaced Persons of various ethnicities, Migrant Workers, and people who flee from fighting in neighbouring countries. paras. 9–10. See also re Ethnic groups: 11. The Department of Provincial Administration, Ministry of Interior originally defined “minorities” (around 1999) as “probably groups of persons without Thai nationality, who are less in number than the original inhabitants of the country and have distinct cultures and traditions; have entered Thailand in different ways, i.e. as illegal immigrants, or granted temporary shelter.” The Department has kept personal history record and issued identification cards for these people, altogether in 18 groups. Later on (since 2005), the following definition was given: “Ethnic Group according to the definition in this Government Operations Handbook means people of other races or nationalities that live among other peoples who are larger in number. This may include groups of people without Thai nationality, who have their own distinct cultures and traditions and who have entered or lived in Thailand in different ways.” 12. By this latter definition, there are 17 minority groups: (1) Vietnamese Displaced Persons; (2)–(4) Chinese Displaced Persons in three sub-groups, namely ex-soldiers of the National Army, Haw or Yunnanese Chinese Displaced Persons and Independent Haw Chinese; (5) Ex Chinese Malayu Communist Militants, or Comrades for the Development of Thailand; (6) Thai Leu; (7) Laotian Displaced Persons; (8) Nepalese Displaced Persons; (9)–(11) Burmese Minority Groups in three sub-groups, namely Displaced Persons, Illegal Immigrants, Displaced Thai Descended Persons with Burmese nationality; (12) Persons on the Highlands; (13) Displaced Persons with Thai nationality from Koh Kong province of Cambodia; (14) Illegal Immigrants from Cambodia; (15) Tong Luang Race (Mlabri); (16) Communities on the Highlands; (17) Illegal Migrant Workers (of Burmese, Laotian, Cambodian nationalities). As for the 18th group – Illegal Immigrants from Burma/Myanmar – this has now been discarded from the definition adopted around 1999. Furthermore, the National Security Council has classified ethnic groups and illegal immigrants into three types (2004), the first type being the persons who fall under Thailand’s policy to grant permanent residence status, the second type are persons who are permitted to stay temporarily, and the last type are people whose status are being sorted out intensively. paras. 11–12. Ibid., paras. 11–40. Ibid., para. 41. Ibid., para 44. See also para. 42 and: Policy to eliminate racial discrimination.

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chapter 5 49. The following are major policies and work plans used as guidelines for the country’s development, which cover the implementation on human rights protection and the elimination of racial discrimination: • The Five-Year National Economic and Social Development Plan – From the period of this report to present is under the 9th–10th plans (2001–2006 and 2007–2011). The two plans have set strategies for human resource and country development and to move Thailand towards being a society of wisdom and learning, based on the directives of building harmony and peaceful coexistence among Thai people, strengthening good relations of all peoples in the society on the basis of rationality, enhancing human security and quality of living at both family and community levels, developing diverse and extensive social and economic security systems, promoting safe and healthy living on the basis of social justice, strengthening integrated judicial process and strict law enforcement, in conjunction with raising awareness on rights and duties of citizens and on the values of and respect for human dignity to reduce conflict. • Policy and 1st National Master Plan of Action on Human Rights (2001–2005). • Strategic Implementation Plan of the National Human Rights Commission (2002– 2007), and theme-specific plans on various issues, e.g. Plan on Children and Youth, Plan on Women, Plan on Family, etc. • Strategic Plan of the Court of Justice to conduct justice and protect the rights and liberties of the people in fairness, promptness and equality under the principle of legal governance. This justice must be made equally and extensively accessible to all persons to ensure their basic rights and liberties, as a guarantee for the commitment towards the elimination of racial discrimination under Article 5 of the Convention. • Strategy to Address the Problem of Status and Rights of Persons 2005 is a policy and strategy aimed directly to speed up the solution of the problem of status of persons. It determines status for the group of persons without clear status, so that they can access rights. This policy lays down a system to protect their legitimate rights, to enable them to lead their lives and participate in the country’s development to their full potentials. It hopes to prevent new immigration of persons without status, adjust the attitude and provide assurance and guarantee on honest conduct by state officials to reduce the opportunity for exploitation. Four strategies have been utilized: (1) Strategy on Status Determination; (2) Strategy on Provision of Basic Rights; (3) Strategy on Proactive and Creative Implementation; and (4) Strategy on Administration. Policies, work plans and special measures toward ethnic groups 50. The Policy and Master Plan for Community Development, Environment and Addictive Plants Control on the Highlands, Amendment 1, 2 and 3 (1992–1996, 1997–2001, 2001–2006) is under the responsibility of the National Security Council. It aims to reorganize the communities on the highlands into permanent households and villages by law, and at the same time, to regulate their land utilization. The plans seek to speed up the persons’ status identification for the highlands people to make them legitimate, to prevent and block new immigrants, and to monitor situations and problems. In coming up with appropriate solutions to the problems, three strategies of implementation

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framework have been laid down, namely the Strategy to bring sustainable security to the highland communities, the Strategy for the development and management of habitat and livelihood including land for cultivation on the highlands, and the Strategy for Administration and Management. These strategies have been devised into practical plans/ projects. A Committee has been set up, the members of which are from related agencies working together. This Master Plan has later developed into the new Policy and Strategic Plan of 2005. Besides, there are many other plans/projects implemented by the government sector and the civil society sector. paras. 49–50. Ibid., para. 51. Ibid., paras. 53–55. Ibid. 57. However, based on Thailand’s reservation to Article 4 of this Convention, the measures under subparagraphs (a), (b) and (c) will apply only when the country sees the necessity to enact such laws. Thailand considers that its laws and social conditions are sufficiently complementary to each other. Another reason is Thailand sees that immediate arrangement of positive measures may not be easy to achieve in practice. para. 57. Ibid. paras. 66–73. Ibid. Freedom of movement was subject to the immigration law and the nationality situation was as follows: 80. The enactment of the Nationality Act (4th Amendment) b.e. 2551 (2008), which entered into force on 28 February 2008: • Jus Sanguinis (Attainment of nationality by blood principle); persons born from either a father or a mother who has Thai nationality, whether born in or outside Thailand, will be granted Thai nationality. “Father” here also means the person who can prove that he is the father of the child, even though the person has not registered the marriage with the mother, and has not registered his acceptance of the child. • Special Provision for a person who cannot acquire Thai nationality, namely, a person whose father and mother are foreigners, and at the time of the person’s birth, the legal father or the father who did not register the marriage to the mother, or the mother who was allowed to reside in Thailand as a special case, or was allowed to stay in Thailand temporarily, or was a person who came into Thailand without permission. In this case of the person who does not acquire Thai nationality by birth, even though he/she was originally held to be a person who came into Thailand without permission, such person may stay in Thailand under whatever status or condition stipulated by the Ministerial Regulations, with due consideration to national security and human rights. • The new Nationality Act also grants back Thai nationality to persons who used to hold Thai nationality because they were born in Thailand, but their nationality was revoked by the Decree of the Revolution Party, No. 337 (1972) because they were born to parents who were alien persons who had illegally entered Thailand, and for the reason of protecting national security at the time. If those persons can present civil registration proof that they have really resided in Thailand for a long consecutive period of time, they are granted Thai nationality, effective from the

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chapter 5 date this law came into force. Moreover, the procedures and steps in applying for nationality have been intensified. People who wish to apply can submit their requests to the District Registrar or the local Registrar immediately. 81. The enactment of the Civil Registration Act (2nd Amendment) 2008, which entered into force on 24 July 2008, has made revisions on birth registration to make it clearer and more outreaching to cover all groups of people. In case of receiving birth reports, the Registrar can register and issue birth certificates on the spot. This same process applies to registering births of street children, abandoned children, children with unknown parents, or children without nationality. Under this new law, Household Registration Books will be issued to persons without nationality, as a means to give the right to birth registration to all groups of children, for the acceptance of their status and initial existence, which will lead to their eligibility to other basic rights. A very important sample case of attaining the right to hold nationality is of the people of Mae Ay District who were overlooked by the population census survey. (See details in annex iv.) 82. Apart from the Nationality Act and the Civil Registration Act, there is the Strategy to Address the Problem of Status and Rights of Persons, adopted by the Cabinet on 18 January 2005, aiming to speed up the solution of the problem of status of persons. It determines the status of the group of persons without clear status, so that they can access basic rights, lead their lives and participate in the country’s development to their full potentials. Under this strategy, policies and guidelines have been laid down to protect the rights of these people and solve their problems. It also aims to adjust the attitude and provide assurance and security to state officials with honest conduct in performing their duties to reduce opportunities for exploitation, and to prevent new immigration of persons without status. Four strategies have been utilized: (a) Strategy on Status Determination – for people who took shelter in Thailand, by giving them the right to convert to Thai nationality and granting Thai nationality to their children born in Thailand; to grant status to the legal alien persons and the right to reside in Thailand for a temporary period, etc., with due consideration to what is appropriate and harmonious to the circumstances of the target children, persons who are studying in Thailand’s educational institutions, rootless persons, persons who are beneficial to the country, alien labourers and other alien persons; (b) Strategy on Provision of Basic Rights to the persons with status and rights problem, to enable them to make their living; (c) Strategy on Proactive and Creative Implementation to prevent new immigration, by cooperating with the neighbouring countries in human resource and community development in the border areas, and to encourage international organizations to play a role in helping to develop the quality of life of the people in the origin countries. At the same time, the strategy imposes stricter measures in preventing new illegal immigrants and in registration control; (d) Strategy on Administration, prompting the National Security Council, as the main directing agency, to work with other concerned agencies and special task forces to speed up the scrutinizing of granting status to the certain groups of people that have status problem, with an aim to solve the status problem of people on the

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highlands, people in the border areas, rootless persons and displaced persons who flee from fighting and death. The strategy lays down work plans/projects, links data network, adjusts the attitude of all parties concerned including the neighbouring countries, sets direction for administration and strict law enforcement, sets priority for the implementation, builds participation from all sectors, and conducts systematic monitoring and evaluation. It aims at the six target groups of people with status problems: (i) People who have originally lived in Thailand, mostly the hill tribes that went unsurveyed from the population census survey, totaling 90,739 persons. The majority of these people have been given status and Thai nationality in their Household Registration Books, with only remaining 2,800 persons to be addressed; (ii) People who sought shelter from outside Thailand, have lived in Thailand for a long time and have conducted good deeds beneficial to the authorities, totaling 180,000 persons. One third of these have been given status, with the remaining 120,000 persons to be addressed; (iii) Migrant workers as illegal immigrants (Burma/Myanmar, Laos, Cambodia) totaling 1,200,000 persons; (iv) Rootless persons; (v) People who have status problem and are students in Thailand’s educational institutions, totaling 60,000 persons; (vi) Migrant workers who have registered but have not undergone status identification procedures. 83. Progress of the implementation under the strategy in 2006 is as follows. Status specification 84. The groups of people for whom the government has policy to specify permanent residence status are ethnic groups, and the illegal immigrants who have been granted the status of alien persons entering Thailand legally and have converted to Thai nationality. Approximately 10,500 persons in the two mentioned groups have had their status specified, and around 170,000 of them have been granted Thai nationality. (Their children born in Thailand will be granted Thai nationality under the Nationality Act and other relevant laws.) As for the remaining persons who have submitted their applications, their cases are undergoing the procedures in the process, while there are a number of them who have not submitted their applications. 85. The groups of people for whom the government has policy to grant temporary residence status, both officially and unofficially: (a) Compile history record, issue identification cards, and designate an area to live for the group that have been permitted a temporary stay officially while waiting for their status specification, totaling around 520,000 persons, mainly illegal immigrants from Burma/Myanmar and persons on the highlands who have entered Thailand after 1976 and 1985; (b) Measures to permit temporary stay unofficially for the groups of people who entered Thailand from neighbouring countries, including displaced persons, illegal immigrants, the National Salvation Movement, displaced Thais, persons who have

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chapter 5 contributed to the Royal Thai Government, and persons who went unsurveyed from the population census survey. 86. Implementation regarding civil registration and improvement of state laws and regulations to solve the problem about status of persons at a more progressive level includes intensifying extensive birth registration of all children born on Thailand’s land according to the law on civil registration, i.e. The Civil Registration Act b.e. 2534 (1991). With impetus from both the public and private sectors, as well as international organizations in Thailand, the implementation measures include forms of research study, data compilation and dissemination, ideas and concepts extracted from meetings and seminars. These have resulted in the issuance of regulations on registering the status of persons in the civil registration according to the law to cover more groups of people every year. paras. 80–86. Ibid.: 109. As Thailand is an agricultural country, for the people in Thailand to have land for living means having a place to live and to make a living too. The enactment of laws on forests and land, such as the National Protected Forests Act b.e. 2507 (1964) and the Wildlife Conservation Zone Act b.e. 2507 (1964), aimed at controlling deforestation, reforestation and conservation and rehabilitation of forests and wildlife, has therefore affected the ethnic groups on the highlands, since they engage in agriculture for a living on those lands. The declaration of new protected forests, parks and conserved forests, has created areas overlapping with the land for livelihood of a large number of local people, farmers and ethnic groups on the highlands. This has resulted in turning those affected people into offenders, or forest encroachers. The ethnic groups on the highlands have fought to demand their right to land for livelihood through formed network organizations of the group of civil or people’s organizations, e.g. Federation of Northern Farmers, Network of Northerners’ Organisations, Assembly of Ethnic People of Thailand, Assembly of Northern Community Forests, Council of the Poor, etc. They have made demands for revision of the Forestry Act, quick enactment of Community Forests law, solution of the livelihood land in the forests problem, revoking of illegal land right certificates on public land, solving the status problem, and ending the arrest, right violations and development limitation against the original local people. A process has thus been established for a joint dialogue between the people organisations’ group and the government sector, by setting up Committees or Task Forces, which have met to discuss and negotiate several times in the past. They are, for example, People Assistance Committee and the Joint Operation Centre for the Solution of Problems of the Highland People. The outcome of the negotiations have led the direction for the problem solution, as appeared in the Cabinet Resolutions, the important ones being the following: (a) Cabinet Resolution on 30 May 1998 addressed the problem of land in the forest zone, according to the measure and direction led by the National Forest Policy Committee to protect the remaining national forests, manage the protected forests and the conserved forests (e.g. national parks, wildlife conservation zones, mangrove forests, etc.), and with cooperation from the Forestry Department and the Office for Agricultural Land Reform. The measures include conducting

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intensive forest rehabilitation with the local people’s participation, prohibiting further expansion of land for livelihood, moving the local residents out from the forest zones by supporting them with public utilities, occupational development and quality of life improvement, reorganizing and arrangement of sufficient land for livelihood for the people, mapping the forest border line, and finding solution to settle the disputes; (b) Cabinet Resolution on 11 May 1999 addressed the problems faced by the farmers in the north regarding land, nationality, forests, and other pressing problems. The resolution led to negotiations and solution to settle the cases of land deeds being issued on the already inhabited land for livelihood of the local people in Lamphun, Lampang and Chiang Mai. Other outcomes are the granting of Thai nationality to the “Thai Phukhao” (hill tribes) peoples and the revision of the Forestry Act; (c) Cabinet Resolution on 6 February 2007 is on the continuous and effective implementation by the principle of “man and the forest living together.” The outputs are: the Project to Promote and Develop Participation of the Community People in the Forest Conservation Areas, the Forest Villages by the new plan, the Villages for the Conservation and Management of Water Sources, the Forest Protection Villages, guidelines on management of land for livelihood and village development, and development of security in the border areas and cooperation with the neighbouring countries to develop border villages. para. 109. See also: 110. The way forward in solving future problems regarding the management of resources between the state and the people, which affects a large number of ethnic groups, is to revise the Forestry Act and enact the Community Forest Act, which has been the people’s demand and is seen as the main goal and hope in solving the problem of conflict of interest in the natural resources between the state and the people since 1989. The new Community Forest Act will establish community forests for conservation purpose and for effective use, promoting and reviving the “man and forest” way of living, as well as seeking cooperation in this matter by setting up committees to oversee the policy at the national and provincial levels. The committees set conditions and requirements in establishing community forests both in and outside the conservation areas. They are in charge of administering and overseeing the management of the forests and impose sanction on the violators/offenders. This is believed to be the best shared solution between the public and civil society sectors, which will benefit both parties. At the operation level, the Community Development Institution, a public organization under the Ministry of Social Development and Human Security, implements projects that are effective and yield concrete results toward the people in many areas of the country. para. 110. Ibid.: 128. The Migrant Workers Group is a large group of persons who have been the focus of attention and care by various organizations in both the public and private sectors, including international organizations, especially those involved in labour, law, trade labour unions, as well as organizations that are driving democratic movements. Thailand has clear goals in tackling the problem of migrant workers, namely aiming

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chapter 5 to allow employment and legal import of workers under cooperation with the countries of origin, and with their acknowledgement. It focuses primarily on the labour that will serve the most needed sectors, and those that will not cause problems or undermine national security. Before that in the years between 1996 and 2002, the solving of this problem tended to be ad-hoc and there was no cooperation from the countries of origin. It was mainly a relaxation of law allowing the migrant workers to take up restricted types of work and only in the designated areas. Only after 2000 that the policy of legally importing labour workers came into effect, with the practice of labour registration with the Ministry of Labour. 129. After the announcement of the alien labour registration, migrant workers were requested to report in 2001. From that point, the situation on rights protection has improved, and labour exploitation has been addressed more effectively. 130. Regarding public health, the migrant workers had to take medical check-ups as a measure to control and prevent six diseases (tuberculosis, leprosy, syphilis, filariasis, malaria, helminthiasis). Anyone with either of the following seven diseases or illnesses is not allowed to work: mental disease, mentally retarded, tuberculosis, leprosy, filariasis in critical stage whose symptom may be appalling to society, syphilis, drug addicted and chronic alcoholism. The above serves as precautionary and screening measures in order to get workers in good health, the same criteria used in recruiting government officials. Moreover, constant follow up on the progress in providing assistance to these workers has been carried out. 131. In handling the aids situation, there have been attempts from proactive workers at the local level, e.g. ngos trying to coordinate with public health agencies to prescribe azt for hiv-infected mothers, mobile medical units out at work, coordination with foreign public health volunteers to organize training for midwives and distribute delivery kits to midwife nurses, special projects for labour workers with high-risk behaviour, with aids Work Plans devised by public health officials in the provinces with a large volume of migrant workers by aiming at them directly, and with public health officials supporting the work of local ngos. 132. Regarding reproductive health and maternal and child health care, a form of working as a network has been developed in implementing work on family planning and reproductive health among the alien labours group, coordinating with concerned agencies, emphasizing proactive services, conducting surveys on health conditions and using the outcome data to plan activities that are most relevant to the problems. Focus has been given to vaccination to boost immunization for children, reaching out specially to the children of migrant workers. Other activities carried out are organizing training for employers, publishing a Handbook on Health Care in Burmese language, providing maternal and child health care services and post natal family planning counseling, and training migrant workers volunteers. 133. In registering child births, the authorities have issued birth certificates to every child born, even despite the mother having no identity paper, in such case it will be recorded as, “according to witness account,” or “no evidence.” 134. Under the justice system, migrant workers are legally protected. The court has seen more lawsuits. Cases of violence against migrant workers have been tried under the justice system executing clear verdicts and punishment (e.g. the case of

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burning on tyre of six bodies, where the court has already sentenced the wrongdoer to imprisonment). Furthermore, there has been assistance from various organizations with regard rights protection directly and in training the migrant workers’ group in order that they can help take care of one another, e.g. training by the Lawyers’ Council which provides knowledge about all major conventions on human rights, several conventions on labour, as well as knowledge about claiming for remuneration/compensation, conducted in the form of lectures and hands-on exercises, supplemented by documents in Burmese language and cartoons. Most importantly, the Royal Thai Government has been constantly trying to improve the quality of life of these people. 136. As for migrant workers who were originally classified as illegal immigrant labour, the law exceptionally provides them with special status to work on a temporary basis under the conditions set by the state. The Royal Thai Government has systematized employment during 1996–2006, according to 11 Cabinet resolutions on this issue, as follows: (a) During 1996–2000, the registration started for only the migrant workers, and they were permitted to work in certain provinces and in certain sectors only. The workers had to buy Health Insurance Card (at 1,300 Baht each) to earn the right to access health services; (b) During 2001–2003, the registration still focused on the migrant workers, but they were allowed to work in all provinces; (c) During 2004–2006, there was an extension of this right to cover the migrant workers and their accompanies (including children aged 1 year up). This group of workers were registered with the 13-digit identity code starting with 00. 137. The next step involved strategy setting to regularize the status of illegal migrant workers into legal migrant workers. This was done through the signing of bilateral Memorandum of Understanding (mous), namely Thailand-Laos (2002), ­Thailand- Cambodia (2003) and Thailand-Burma/Myanmar (2003), which includes the process of verifying the nationality of the workers from their countries of ­origin. The workers then were issued with temporary documents for travel and work permits. Statistics of 2006–2007 (August) showed that as a result of this strategy, there were two batches of workers who have undergone the nationality verification and attained visas and work permits, 51,901 workers from Laos and 33,279 workers from Cambodia. Extension of stay in the Kingdom of Thailand was granted to these ­workers until February 2010. 138. Moreover, on public health, Thailand received financial support from The Global Fund to fight aids, Tuberculosis and Malaria, which focused on advocacy work and interventions for improved quality of life and risk-free life condition for these workers. The personnel involved carried out proactive work with the workers’ group in the business sectors that employed foreign workers most. The Global Fund also supports researches and allocates funds for non-governmental organizations that work with the groups of population who are at risk of facing human rights violation and discrimination problems. The details on this issue were already presented above, under the sections on articles 1 and 5 (e) (i) and (ii). paras. 128–38. Ibid., para. 139.

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Ibid.: 141. The anti-human trafficking operation in Thailand started in 1996, during the crackdown of a prostitution where victims were found to be children (under 18 years) trafficked from both within and outside Thailand, with Thailand in the status of source, transit and/or destination country. The Office of the Prime Minister by the Office of the National Committee on Women’s Promotion and Coordination and the ­Office of the National Committee on Youth’s Promotion and Coordination jointly ­undertook the implementation measures to tackle this issue by running campaigns to raise awareness and provide knowledge and understanding, devising operation plans to prevent and solve the sexual commercialization problem, revising laws relevant to this issue. These laws include The Prostitution Prevention and Suppression Act (1996), The Act on Measures to Prevent and Suppress the Trafficking of Women and Children (1997), a revised addition to the Criminal Code (14th Amendment, 1997) that increases punishment and gives power to the court to punish sexual offenders against children outside the Kingdom of Thailand. There were measures revising the Criminal Procedure Code (20th Amendment, 1999), setting guidelines on child witness questioning, enacting The Money Laundering Prevention and Suppression Act (1999), classifying sexual offences involving procurement of persons for prostitution as one of the primary offences that may face punishment of asset confiscation, together with legal development. One concrete output was the signing of the first Memorandum of Understanding (mou) among the government agencies involved in the operation (1999). After a period of serious implementation, it was found that the number of Thai victims declined, but the number of victims from neighbouring countries increased. 142. Then came the declaration of the National Policy and Plan on the Prevention, Suppression and Solution of Trafficking of Children and Women in Thailand and Overseas (Cabinet Resolution dated 1 July 2003), to be used as operational guidelines. The Ministry of Social Development and Human Security, upon taking up the task of tackling this problem, pushed the government to include this issue as a national urgent agenda. Eventually, the government announced the National Agenda on the Prevention and Suppression of Human Trafficking (6 August 2004), and a National Committee was set up with the Deputy Prime Minister as Chairman. The Committee laid down policy, structure and mechanism for the implementation on the protection and provision of assistance to all victims from human trafficking regardless of nationality according to the principles of human rights. It also set up the mechanism for the Operation Centre for Human Trafficking Prevention and Suppression at the provincial and national levels as well as in overseas countries. An initial fund of 100 million baht was granted to support the administration, but later transferred to be seed fund for the prevention and suppression of human trafficking under the Human Trafficking Prevention and Suppression Act b.e. 2551 (2008). Furthermore, there was an expansion of mou signing, from between government agencies to between the government sector and the private sector, private sector and private sector, between groups of provinces in each region, and expanded from unilateral commitment to international ones, including the bilateral agreement

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between Thailand-Cambodia, Thailand-Laos, and the multi-lateral agreement of six countries in the Greater Mekong Sub-Region (Cambodia, China, Laos, Burma/Myanmar, Thailand and Vietnam). Training was given to the personnel involved, namely police officers, immigration officers, officers of the Attorney’s Office, judges, doctors and officers of the Ministry of Social Development and ­Human Security. There was also an integrated project to prevent and resolve the problems of human trafficking and transnational organised crimes by the ­Department of Special Investigation, by exchanging data/problems, developing relations on news and communication and experience in the suppression work, as well as other projects by nongovernmental organizations and civil sector networks in the forms of meetings, seminars and workshops, which would be expanded to asean and global levels. 143. From implementing to rescue and assist the victims from human trafficking, Thailand finds that the problem has intensified and become more severe. There were cases of oppression, torture, intimidation and illegitimate exploitation like those committed by transnational organised crime rings. The Human Trafficking Prevention and Suppression Act b.e. 2551 (2008) was then enacted on 5 June 2008, dissolving the Act on Measures to Prevent and Suppress the Trafficking of Women and Children 1997 in order to assist the victims of these crimes toward criminal justice and additional remedy and compensation, regardless of nationality. The Act on Victim Compensation and Expense Reimbursement in Criminal Cases b.e. 2544 (2001) and Witness Protection Act b.e. 2546 (2003) are other legal instruments that support the right to receive compensation in the case of damage from criminal offences committed by others, and to provide protection from harm in the case of witness to help him/her testify in the trials where the person is a victim of the human trafficking crime. As part of the strong commitment to counter human trafficking, Thailand acceded to the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, and is preparing to accede as a State Party to the United Nations Convention against Transnational Organized Crime, which aims to promote cooperation in preventing and counteracting transnational organized crimes toward increased efficiency, and to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. paras. 141–43. Ibid., paras. 145–46. Ibid., paras. 157–67. Ibid.: 172. None of Thailand’s policies or laws condones division by social class, skin colour or race under constitutional monarchy and its social system. The Constitution of the Kingdom of Thailand b.e. 2550 (2007) contains principles that abide by the Convention and Durban Declaration and Programme of Action and it has provisions on principles of human rights and all forms of non-discrimination, i.e. Section 4, 5, 30 and 66. 173. The Ministry of Public Health has developed policy recommendations to enable people who have resided in Thailand for a long time or those who were born in Thailand but their nationalities could not be proved, to enjoy the Universal Health

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chapter 5 Coverage regardless of their nationality identification and civil registration status. The recommendations are being pushed for enactment into law based on the principle of creating a healthy society, in which disease surveillance, prevention and control is needed in order to prevent the spread of communicable diseases among all groups of population in Thailand without exception of any particular groups of people. 174. The Ministry of Public Health also set up the Migrant Health Committee to implement these five migrant health strategies as follows: (a) Set up a public health services delivery system for the migrants, which suits their circumstances and takes into consideration their limitations; (b) Provide health security assurance to the registered migrants or ensure that they can enjoy the ‘Universal Health Coverage’; (c) Promote and support the participation of migrants and their communities in looking after individuals and their families’ health; (d) Cooperate with the Ministry of Labour in developing an information technology system to collect data in all dimensions about the migrant; (e) Arrange administrative system to support the implementation of the aforementioned migrant health strategies. 175. Furthermore, the second part of the Durban Declaration and Programme of Action urges the State Parties to build and strengthen national mechanisms to promote and protect the rights of the patients of dangerous communicable diseases, such as hiv/aids. In this regard, Thailand has enacted the National Health Security Act b.e. 2545 to ensure the rights of all hiv/aids patients to access to anti-viral drugs and medical treatment needed and social support. 176. The Ministry of Education gives importance to the management of education of all levels and for all people, whether Thais or persons without Thai nationality. The cabinet approved the proposal of the Ministry of Education on 5 July 2005 to implement measures to manage education for the persons without civil registration proof or status who live in Thailand, giving them access to enroll in any educational institutions of any level, category, course or education zone. The Ministry of Education has the power to allocate budget as subsidies to cover per head expenses to the educational institutions which arrange education for the persons without civil registration proof or without Thai nationality. As for the persons who fleeing from fighting outside Thailand, the Ministry has arranged for their education in the shelter centres, focusing on the teaching of Thai language to foster understanding and enable them to communicate properly, which has been an operation conducted in joint cooperation with organizations in the civil society sector. 177. The Ministry of Social Development and Human Security enacted the Human Trafficking Prevention and Suppression Act in 2008. The law provides for assistance, remedy, shelter and rehabilitation for the victims of human trafficking, Thais or nonThais equally. The Ministry has also run a campaign to raise awareness about this Act, especially in areas where alien communities live. 178. The Ministry of Justice enacted the Act on Victim Compensation and Expense Reimbursement in Criminal Cases in 2001, specifying that financial assistance and remedy be given to all victims equally and without racial discrimination, and that legal

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assistance and the handling of complaints be serviced to all people promptly and without racial discrimination. Besides, the Ministry has compiled a set of National Standards on Treatment toward Prisoners or Violators, based on non-­discrimination either by race, skin colour, gender, age, language or social background, as stipulated in the United Nations standards, e.g. Standard Minimum Rules for the Treatment of Prisoners, or principles with regard to detainees or prisoners. 179. The Ministry of Labour enacted the Labour Protection Act b.e. 2541 (1998) and (No. 2) 2008, aiming toward protection of equal treatment in employment, regardless of the race, nationality, age or gender of the employees. Most recently, the ­Ministry amended the Aliens Work Act b.e. 2551 (2008) to correspond with the current migrant worker situation, to improve welfare for migrant workers and prevent them from being exploited by employers. Moreover, the Ministry has implemented the registration of migrant workers who have entered Thailand illegally to legitimize them as legal workers. It has also entered into employment agreements with neighbouring countries in order to make Thailand’s management of migrant workers more balanced between the principles of human rights, which do not condone racial discrimination, and the national security considerations. 180. The Ministry of Interior improved the nationality law by initiating enactment of the Nationality Act (No. 4) b.e. 2551 (2008), which provides for the restoration of Thai nationality to the persons whose nationality was revoked and denied by the Revolutionary Decree No. 337. This law guarantees the right to gender equality in the acquisition, loss and return of nationality; specifies conditions for the persons who were born in Thailand but were not granted Thai nationality regarding their stay in Thailand, with due consideration based on human rights principles as well as national security concerns. Besides, the Ministry revised the Civil Registration Act (2nd Edition) b.e. 2551 (2008), providing for birth registration and issuance of birth certificates to all children, as well as recording of civil registration and personal history for persons without Thai nationality who are residing in the kingdom. 181. The National Security Council – The National Security Policies, 2007–2011 set main objectives to enhance an environment conducive to making all peoples of the nation live in harmony amongst their cultural diversity, and respect equality and human dignity of one another. The policies also aim to promote cross-cultural learning, in order to avoid ethnicity-related insults, and to create positive attitudes of similarity and togetherness so that people can live together in peace and harmony. Moreover, the Council laid down “Strategies to address the problem about the status and rights of persons” in 2005 to solve the problem regarding displaced persons or illegal migrants from neighbouring countries. It had surveys conducted to record the personal history of the target people, and provided for these people to enjoy the essential basic rights, with due consideration based on a fine balance between human rights principles and national security concerns. 182. The Office of the National Economic and Social Development Board has integrated the protection of equal rights and liberties of the people and the elimination of discrimination in the 10th National Economic and Social Development Plan, 2007–2011. It has set directions and strategies for enhancing unity of the nation, so that all Thai people can live together happily in society. The plan aims to develop

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chapter 5 an economic and social protection system which is diverse and extensive; promote safe, pleasant and healthy way of living on the basis of social justice; strengthen the justice system in an integrated manner, along with reinforcing the exercise of laws; build conscience about rights and duties of citizens; and raise awareness about values and respect for human dignity to reduce conflict. paras. 172–82. un Doc. CERD/C/THA/Q/1-3 (July 2011). Concluding recommendations, supra note 5, paras. 4–6. Ibid.: Domestic application of the Convention 7. Noting the State party’s dualist system of reception of international treaties, the Committee expresses concern that the State party has not taken sufficient measures to incorporate the provisions of the Convention in its domestic law. The Committee urges the State party to take stock of existing legislation governing the elimination of racial discrimination, with a view to taking the most appropriate approach to give effect to all provisions of the Convention. The Committee also recommends that, in this regard, the State party take account of the relevant recommendations in the present concluding observations. para. 7. Ibid.: The interpretative declaration 8. The Committee is concerned that the interpretative declaration on the Convention made by the State party, according to which it does not recognize any obligation beyond the confines of its Constitution and law, is incompatible with the obligation of the State party under Article 2 of the Convention to use all means, including legislation, to prohibit and bring racial discrimination to an end (art. 2). The Committee urges the State party to build on the momentum gained through the universal periodic review commitment to lift reservations to international human rights treaties, and withdraw its interpretative declaration on the Convention. para. 8. Ibid.: Reservation to Article 4. 11. Noting that the State party is considering the withdrawal of the reservation to Article 4, the Committee is nevertheless concerned that the reservation, which interprets Article 4 to require legislation “where it is considered that the need arises,” is vague and possibly inconsistent with the obligation of States parties to enact laws prohibiting the dissemination of all ideas based upon racial superiority and hatred. The Committee also notes with concern that existing legal provisions, including those of sections 83–88, 206, 207 and 393 of the Criminal Code, fall short of the requirements of Article 4 (arts. 2 and 4). Recalling its general recommendation No. 15 (1993) on Article 4, which stipulates that the provisions of Article 4 are mandatory and preventive, the Committee urges the State party to withdraw its reservation to Article 4 of the Convention and to incorporate into its Criminal Code the offences proscribed by Article 4. para. 11. Ibid.: 9. The Committee notes with concern the absence of legal provisions defining and prohibiting racial discrimination in the State party, which are critical to enabling the prosecution of acts of racial discrimination and the seeking of redress for violations (arts. 1, 2 and 5).

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The Committee urges the State party to introduce a definition of racial discrimination into its legislation, in accordance with Article 1, paragraph 1, of the Convention, and to make it an offence punishable by law. To this end, it also recommends that direct and indirect discrimination, in all fields of public life, including those outlined in Article 5 of the Convention, be defined in the State party’s administrative and civil laws. para. 9. Ibid.: 12. The Committee notes with concern the lack of information on court decisions relating to racial discrimination. It also expresses concern about the obstacles to access to justice experienced by members of ethnic groups, including their limited knowledge of their rights, as well as language, geographical and financial barriers (arts. 5 (a) and 6). Recalling its general recommendation No. 31 (2005) on the prevention of racial discrimination in the administration and functioning of the criminal justice system, the Committee recommends that the State party collect data on court decisions relating to racial discrimination, with a view to assessing the effectiveness of laws and policies aimed at eliminating racial discrimination. The Committee requests that the State party include such information in its next periodic report. Moreover, drawing attention to its general recommendation No. 26 (2000) on article 6 of the Convention, the Committee recommends that the State party raise the public’s awareness of the Convention as well as of laws adopted pursuant to the Committee’s recommendation in paragraph 7 above, and ensure that members of ethnic groups can avail themselves of legal remedies. para. 12. Ibid.: Equality in the enjoyment of civil and political rights 13. The Committee is concerned at the restrictions to the right of naturalized Thais to participate in, and stand for, elections (art. 5 (c)). …The Committee urges the State party to accord equal civil and political rights to all citizens irrespective of the mode of acquisition of the citizenship. Access to citizenship 14. While welcoming the setting of the target of granting of legal status to about 300,000 persons within a time frame of three years and measures such as the adoption of the 2008 Civil Registration Act (No. 2), the Committee is nevertheless concerned at the large number of persons in the State party eligible for citizenship but who are currently stateless. The Committee is further concerned at the subsequent denial of their civil and political rights as well as economic and social rights. Moreover, while noting that the State party’s legislation allows for the registration of all persons born in the State party, the Committee remains concerned that a large number of births, particularly among ethnic groups and migrants, are not registered. The Committee reminds the State party that lack of birth registration is a contributing factor to statelessness (art. 5 (d)). The Committee urges the State party to take effective measures to address the obstacles encountered in the acquisition of citizenship by those who qualify for it, including with regard to obtaining the required documentation from local authorities. Bearing in mind its general recommendation No. 30 (2004) on discrimination against non-citizens, the Committee also recommends that the State party strengthen its

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chapter 5 efforts to facilitate the registration of births, including by allowing late registration as well as registration through the health-care system. The Committee further encourages the State party to accede to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. paras. 13–14. Ibid.: Self-identification 15. The Committee expresses concern at the categorization used by the State party for identifying specific groups, such as rootless persons, aliens, unsurveyed persons, persons with status problems, referred to in paragraphs 11 to 40 of the State report (arts. 1 and 2). The Committee recommends that the State party review the policy of categorization of the various groups in its territory guided by the principle of self-identification contained, inter alia, in general recommendation No. 8 (1990) and revise its terminologies in order to avoid discrimination against these groups. Moreover, referring to the State party’s support for the adoption of the United Nations Declaration on the Rights of Indigenous Peoples, the Committee encourages the State party to affirm in its legislation the rights of indigenous peoples, in line with the Declaration, and also to consider acceding to International Labour Organization Convention No. 169 (1991) on Indigenous and Tribal Peoples in Independent Countries. para. 15. Thailand voted for the un Declaration on Rights of Indigenous Peoples, see: United Nations Declaration on the Rights of Indigenous Peoples adopted by General Assembly : A/61/L.67 and Add.1 (September 2007). Supra note 5, para. 16. Ibid.: The Committee recommends that the State party take measures to eliminate negative stereotypes about ethnic groups and to raise awareness among media professionals of their responsibility not to disseminate stereotypes and prejudices and to avoid giving accounts of incidents involving ethnic groups in ways that stigmatize the group as a whole. para. 19. Ibid.: 20. The Committee is concerned by reports that Malayu women are facing double discrimination in many fields of political and social life (art. 2, 5(d)). Bearing in mind the intersectionality of ethnicity and religion in certain circumstances and taking into account the Committee’s general recommendation No. 25 (2000) on gender-related dimensions of racial discrimination, the Committee urges the State party to take the necessary measures, including legislative ones, to ensure, in accordance with the Convention, the equal treatment and non-discrimination of Malayu women. para. 20. Ibid.: Special laws application in the southern border provinces 21. Notwithstanding the measures taken by the State party, such as the dissemination of “human rights cards” and the lifting of the emergency decree in some districts, the Committee remains seriously concerned at the discriminatory impact of the application of the special laws in force in the southern border provinces, including reports .

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of identity checks and arrests carried out on the basis of racial profiling, as well as reports of torture and enforced disappearance of Malayu Thais. The Committee is further concerned at the risk of serious human rights violations in the enforcement of these laws as well as at the absence of a mechanism of oversight of their application (arts. 2 and 5 (a, b, d)). Recalling its general recommendation No. 31 (2005) on the prevention of racial discrimination in the administration and functioning of the criminal justice system, the Committee urges the State party to take concrete measures to eradicate the practice of identity checks and arrests based on racial profiling in the application of the special laws in the southern border provinces. The Committee also recommends that, in addition to providing compensation to persons affected by incidents in the southern border provinces, the State party: (a) Continuously assess the need for the special laws and establish an independent mechanism to monitor their enforcement; (b) Review the special laws with a view to meeting international human rights standards, particularly those in regard to the prevention of torture; (c) Thoroughly investigate all allegations of human rights violations and prosecute those found responsible. The Committee requests that the State party provide in its next periodic report information on the impact of the strategies implemented by the Internal Security Operations Center as well as of the Development Plan for the Special Area in the Southern Border Provinces for 2009–2012, including on finding durable solutions to the conflict in the area. para. 21. Ibid., paras. 22–23. Ibid.: 24. The Committee notes the information provided by the delegation on measures adopted by the State party to combat trafficking in human beings, but regrets the lack of information on the impact of these measures (art. 5 (e)). The Committee requests the State party to provide in its next periodic report information on the impact of measures taken on the incidence of human trafficking, on how such measures address the root causes of trafficking, and on the prosecution of cases of trafficking. para. 24. Ibid.: Asylum seekers and refugees 25. While welcoming the State party’s generosity in hosting a large number of refugees from neighbouring countries, the Committee is concerned that the State party’s enactments, including the Provincial Admission Board screening procedures as well as those under the national Immigration Act, fall short of international standards for the protection and treatment of refugees and asylum seekers. Moreover, noting the information provided during the dialogue according to which humanitarian assistance is provided to Rohingyas coming into the State party, the Committee expresses concern at reports of members of the group being turned back to sea (arts. 1 and 2). The Committee recommends that the State party adopt appropriate legislation and ­procedures for the protection of refugees and asylum seekers, in line with international human rights standards. The Committee also urges the State party to take

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chapter 5 measures to prevent any further expulsion of Rohingyas seeking asylum, and to give them access to the United Nations High Commissioner for Refugees and registration through the Provincial Admission Board mechanism. Furthermore, the Committee encourages the State party to pursue the universal periodic review commitment to review its position on the 1951 Convention relating to the Status of Refugees and the 1967 Protocol thereto. para. 25. Ibid., paras. 26–28. Thailand’s follow up report: CERD/C/THA/CO/1-3/Add.1 (January 2014): Legislation and measures 4. A Draft Promotion of Opportunities and Gender Equality Bill has been proposed to eliminate discrimination on the basis of gender or sexual orientation. Such discrimination is defined as: an action or failure to act to differentiate among, discriminate against, not admit, and restrict rights or deprive individuals of any specific rights and benefits directly or indirectly on account of one’s gender or sexual orientation, as well as engagement in violence and sexual threats, all of which are illegal acts. Pursuant to this draft Bill, the prescription of any regulations that may be deemed discriminatory within public or private organizations is prohibited. Effective implementation of this legislation will be enhanced by the establishment of a committee vested with the power to determine policies and measures, provide implementation guidance for concerned agencies, and deliberate upon acts falling within the scope of the provisions of the Bill. Sanctions against perpetrators who violate other individuals’ rights or those persons who discriminate against other individuals are specifically stipulated. Where a violation thereof is committed against individuals under the perpetrator’s responsibility or under their authority and/or supervision, the perpetrator shall be subject to more severe punishment than would be otherwise imposed upon perpetrators in general so the stronger punishment aims to pre-empt the abuse of power on those with greater authority. The proposed legislation also set up a fund designed to finance activities related to gender-based opportunities and equality between genders. 5. In addition, the Local Administrative Organizations Bill has been proposed. This draft legislation contains specific measures to eradicate obstacles and promote individuals’ abilities in the exercise of their rights in the same vein as others (pursuant to section 30). All actors concerned have made an effort to ensure a male–female ratio regulating gender based participation and employment, starting from the local administration level. A 1:1 gender ratio for council members has been set as a goal in subdistrict administrative organizations. paras. 4–5. Ibid., paras. 25–26. Ibid. 45. As for short-term measures, all public agencies concerned have played a part in overseeing and providing necessary means in accommodating Rohingya immigrants. For example, the Ministry of Social Development and Human Security has implemented various short-term measures, including the provision of shelter to the children and women, while the Immigration Bureau has placed male Rohingya immigrants on its mandatory supervision list and the Ministry of Public Health has been in charge of health among Rohingya immigrants. These official support arrangements have been supplemented by additional support from across the country from members of the

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public who have donated ample supplies of basic food necessities. In the same vein, Muslim networks in Thailand expressed their readiness to assist the Rohingyas and have also provided support. The expulsion of these immigrants to the areas of origin, where dangers and unsafe conditions may still be present, is not deemed practical, taking into account also the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (cat) to which Thailand is a state party. ­Meanwhile, the Ministry of Foreign Affairs has been assigned to disseminate information and negotiate with the countries concerned, as well as with relevant ­international organizations, for the resolution of the Rohingya issue. para. 45. 46 The situation is similar in the drafting of the new Constitution in 2015. 47 New Gender Equality Act: Royal Gazette, Vol. 132, part 18 Kor (13 March 2558/2015), pp. 17–27. (in Thai) 48 Discussions were apace in 2015 to withdraw the reservation. 49 For range of security laws, See: International Commission of Jurists (icj), Thailand’s Internal Security Act: Risking the Rule of Law (Geneva/Bangkok: icj, 2010). 50 See cases on eviction: ngo reports: e.g. International Commission of Jurists and Justice for Peace Foundation, Alternative Report on Thailand to the cerd 2012; Coalition on Racial Discrimination Watch, Chiangmai University, Shadow Report on Eliminating Racial Discrimination; Thailand, 2012; Alliance for cerd Alternative Report on Racial Discrimination – Towards Malays in Southern Border Provinces of Thailand: acarm, Thailand’s Alternative Report on Racial Discrimination towards Malayu in Southern Border Provinces (Joint Submission by 21 organisations), 2012. These are documented in: www .ohchr.org. 51 Since (in governmental circles) Thais seem to be seen as the sole indigenous group, the term “ethnically diverse” has been used in the country reports to the various treaty bodies to designate the variety of groups in the country. 52 The Rohingya situation is longstanding: Vitit Muntarbhorn, The Status of Refugees in Asia (Oxford: Clarendon Press, 1992). 53 for ilo Conventions, see: www.ilo.org.

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The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (cat) and Thailand Introduction International law regards the prohibition against torture as absolute and nonderogable; the position is strengthened by the cat, finalised in 1984 and entering into force in 1987.1 It offers detailed scrutiny of countries’ records on the issue. There are 16 substantive articles, the rest being on the work of the monitoring body – the cat Committee and procedural matters. The Convention is now complemented by a Protocol (opcat) which opens the door to a sub-Committee to carry out visits to detention facilities as part of a preventive strategy. The substantive provisions are seen in Table 14. Of importance is the definition of torture which not only cover cases where the authorities or their agents inflict severe pain or suffering, whether physical or mental, for forced confession but also cases in relation to a punishment, intimidation or discrimination, per Article 1: 1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.2 Moreover, cruel, inhuman and degrading treatment is forbidden. The absolute nature of the prohibition is set out in Article 2, while Article 3 posits the principle of non-refoulement pertaining to potential expulsion or pushback to another state where there are substantial grounds of danger of torture.

© faculty of law, chulalongkorn university, 2017 | doi 10.1163/9789004326675_007

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cat: Summary of contents.

Article 1: definition of torture Article 2: no justification of torture by reason of public emergency Article 3: non-refoulement Article 4: the need for criminalization of torture Article 5: universal jurisdiction in regard to torture Article 6: the need for immediate preliminary inquiry re allegation of torture Article 7: the duty to prosecute in a State, if it does not extradite Article 8: extradition Article 9: mutual legal assistance Article 10: education Article 11: systematic review of interrogation rules Article 12: prompt and impartial investigation Article 13: protection from reprisal in the case of complaint Article 14: redress for the victim Article 15: non-admissibility of confession resulting from torture Article 16: preventive measures Source: Author’s own table derived from OHCHR, The Core International Human Rights Treaties.

Complicity is assailed in Article 4, while Article 5 advocates universal jurisdiction against acts of torture. The need for preliminary inquiry into the facts is voiced by Article 6, and Articles 7 and 8 call for extradition of the culprit to another country, or prosecution in the place where the person is found. Article 9 invites mutual legal assistance, while education against torture is underlined by Article 10. Article 11 calls for systematic review of interrogation rules, while Articles 12 and 13 call for prompt and impartial investigation of cases. Meanwhile, the need for redress is voiced by Article 14, and Article 15 prohibits the use of statement obtained by torture in any proceedings. Article 16 goes further by calling for action to prevent cruel, inhuman and degrading treatment. Thailand acceded to the cat on 2 October 2007. Various interpretative declarations and one reservation were entered as follows: 2. To implement the provisions of the Convention in compliance therewith, Thailand made an interpretative declaration upon accession pertaining to Articles 1, 4 and 5; and entered a reservation pertaining to Article 30 of the Convention, details of which are as follows:

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(1) Article 1 – With regard to the definition of the term “torture,” Thailand’s Penal Code currently in force does not provide any specific definition thereof. Thailand, therefore, interprets the meaning of the term pursuant to its understanding thereof in accordance with the Penal Code currently in force. (2) Article 4 – Regarding the provision that all forms of torture are criminal offences punishable under criminal laws, a principle also to be applied to any attempt at, complicity in and participation in an act of torture, Thailand interprets such cases pursuant to its understanding thereof in accordance with the Penal Code currently in force. (3) Article 5 – In regard to the provisions for State Parties to implement measures which may be deemed necessary to enable them to establish jurisdiction over the offences referred to under Article 4, Thailand’s interpretative understanding of relevant questions of jurisdiction shall be in conformity with the Penal Code currently in force. (4) Reservation on Article 30, paragraph 1 – Thailand does not undertake to be committed to the said Article (which provides that disputes pertaining to interpretation, construction or application of the Convention may be brought to the International Court of Justice for deliberation and final ruling upon request of either party in the dispute). This reservation is put forward on the grounds that Thailand does not accept the jurisdiction of the International Court of Justice pre-conditionally, except when deemed appropriate after due consideration has been exercised on a case by case basis.3 The initial report covered the period till 2010; it was published by the un in 2013 and the dialogue took place in Geneva before the cat Committee in 2014.4

Reporting Process

Implementation Measures After an initial introduction, the initial country report traced the implementation process article by article, with these highlights: 1.

The general principles outlined in the 2007 Constitution, particularly its Section  32 which prohibited torture, cruel, inhuman and degrading treatment, were cited.5

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The report then referred to various provisions of the Criminal Law pertaining to the issue, noting that torture might fall under several grounds for prosecution, such as battery and grievous bodily harm.6 Severe penalties could be imposed on these grounds: 38. With regard to aggravating circumstances in accordance with ­Section  289, Sub-Section (5) contains wording that corresponds with the term “torture or cruel treatment” in the Convention, resulting in such increase in punishment. However, “torture” in the provision under ­Sub-Section (5) refers to acts causing sustained suffering by any such victim prior to death or bodily or mental injuries inflicted upon any such victim, or grievous injuries involving such severe pains and tribulations prior to death, such as subjecting victims to burning alive (Supreme Court’s Judgment No. 3305/2543). Inhumane treatment means an act which involves killing or an assault of a cruel inhuman character, such as killing an entire family, or using a wooden club to hit the head of the ­victim, breaking his skull, then throwing him into the water while still alive (Supreme Court’s Judgment No. 576–577/2545). Thus, such meaning differs from the definition of torture pursuant to the definition in ­Article 1 of the Convention.7 In regard to Article 1 of the cat, the report’s response was to admit that while there was no definition of torture in Thai law, several laws, including Article 32 of the Constitution and related criminal law, prohibited the practice.8 Per the report, various legislative provisions corresponded to Article 2 as follows: 62. The Criminal Procedure Code states the following – Section 84 stipulates that the person under arrest shall be immediately brought to the office of the inquiry official, and the accused has the right to medical treatment in case of illness in accordance with Section 7/1(4). – Section  7/1 endorses the right of the accused person detained or imprisoned to meet his relatives or trusted persons anytime from the time of the arrest and inquiry, and the accused person detained or imprisoned may request the officer in charge to facilitate arrangements in notifying his relatives or trusted persons thereof at no cost. Where the alleged offender is a foreigner, Section 13 provides that the Inquiry Official, the Public Prosecutor, or the court shall make necessary arrangements to provide an interpreter to the accused without delay. Pursuant to the Inquiry Regulations of the Royal Thai Police, it is prescribed in a rule that the Foreign Affairs Division of

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the Royal Thai Police shall be informed on the first occasion within 24 hours, so that the Division may inform the embassy of the foreign national thus accused within 24 hours. – Sections 7/1(2), 83, 134/3 and 173 recognize the right of the accused to meet and consult with his lawyer in every stage of the judicial process. State officials in charge must notify the accused of this right. – Section 135 prohibits the Inquiry Official from committing any acts of torture against the accused so as to make him give a statement. – Section 86 and Section 87 prescribe that detention of arrested suspects shall be implemented only as deemed necessary so as to prevent escape and as deemed suited to the circumstances of the case. – Section  90 prescribes that whenever a claim is made that any person is being unlawfully detained in a criminal case, the following persons have the right to file a motion to the local court exercising jurisdiction over criminal cases, requesting the release of such person: (1) The detainee per se; (2) A public prosecutor; (3) An inquiry official; (4) The commander or warden of the prison. (5) The husband, wife, or a relative of such detainee, or any other person acting on behalf of the detainee.9 The issue of non-derogability re the prohibition in Article 2 was reflected in the report, subject to the qualification that punishments ensuing from a court order were not prohibited.10 The report added explanations concerning the use of emergency laws and claimed that they did not justify impunity.11 While there was no local law integrating into the Thai setting Article 3’s prohibition of return of a person to an area where he/she might be tortured, the report claimed that the principle of non-refoulement was generally respected. There were special provisions on the protection of victims of human trafficking.12 In regard to the need to criminalize torture per Article 4, the report admitted that there was no specific law on the issue but that this should be seen in context, citing the role of the courts in punishing violators: 80. Accordingly, it may be summarized that even though Thailand has not stipulated a specific definition of the term “torture” that incorporates expressly the term “torture” as defined in the Convention, acts of torture pursuant thereto under Article 1 are, generally, acts constituting offences under current Thai criminal law. Further implications thereof include

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more stringent punishment for certain types of offences, as appropriate. However, this does not yet cover all potential cases. 81. Although Thai legislation has not stipulated any specific offences of torture as such, current Thai laws are adequate for punishing public officers who commit acts of torture. Examples in this regard include Supreme Court judgment no. 1399/2508 pertaining to a case in which a public officer inflicted bodily harm on the accused for the purpose of obtaining a confession and Supreme Court judgment no. 706/2516 punishing a public official who inflicted bodily harm on the offender for the purpose of punishing a person without legal authority.13 In regard to Article 5, the jurisdiction of Thai law was based on nationality and territoriality, but there was an attempt to broaden it to cover universal jurisdiction to comply with the cat.14 On Article 6, the report noted that investigations were interlinked with several institutions such as law enforcers, the National Human Rights Commission and the Ombudsman.15 The report stated that Article 7 was responded to – by the Criminal Procedure Code.16 The issue of extradition under Article 8 was reflected in the law on extradition in Thailand, particularly the 2008 Extradition Act.17 The reported noted that Article 9 was implemented by the Mutual Legal Assistance Act of 1992.18 Training was already takes place in the implementation of Article 10.19 With regard to the use of restraints covered by Article 11, some constructive steps included efforts to use technology to monitor prisoners instead of use of shackles.20 In regard to Article 11, there was no more caning or use of dark rooms as punishment.21 Article 12’s call for prompt and impartial investigation was responded to – by the Criminal Procedure Code.22 On the issue of access to justice and protection of victims and witnesses from intimidation per Article 13, the country had a specific witness protection law (2003), with arrangements to help to protect them from harm.23 The Compensation and Expenses for Injured Person and the Accused Act be 2544 (2001) responded to Article 14.24 The time limit for the compensation claim was within one year of the malfeasance.25 The prohibition against use of confessions per Article 15 was part of the Criminal Procedure Code (Section 135).26 The report ended by stating that Section 32 of the Constitution as above reflected Article 16 of the cat.27

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Dialogue and Recommendations In April 2014, the Thai delegation met with the cat Committee. The statement from the delegation provided an update of the situation, including an effort to reform the law to comply with the cat, consideration to accede to the opcat and invitation to the un Special Rapporteur on Torture to visit the country. There were several ngo reports also before the cat Committee, together with a detailed input from the National Human Rights Commission.28 The Committee made the following recommendations: (1) It welcomed various developments such as the 2007 law against domestic violence and the 2008 anti-trafficking law.29 (2) It expressed concern over the situation in the South.30 (3) It called for withdrawal of the declarations entered by the country.31 (4) It recommended adoption of a definition as well as criminalization of torture, bearing in mind the Committee’s general comments which had underlined the need for specific definition at the national level consistent with the cat and without being subject to the statute of limitations.32 (5) It noted the extent of the malpractice and called for effective investi­gations.33 (6) It called for integration of the absolute nature of the prohibition of torture under the cat into the special laws, particularly the 2005 Emergency Decree then being used in the South.34 (7) It referred directly to persons affected by the violations and called for reforms in the South as follows: Special laws 12. While noting the delegation of the State party has cited 2,889 bombing incidents in the South and thousands of casualties of civilians and military personnel, the Committee remains seriously concerned about numerous, ongoing and consistent allegations about the routine use of torture and ill-treatment by security and military officials in the Southern Border Provinces to obtain confessions. This situation is exacerbated by the application of three special laws, namely the 1914 Martial Law Act, the 2005 Emergency Decree, and the 2008 Internal Security Act, which provide broad emergency powers to the security and military forces outside judicial control and reinforce a climate of impunity for serious human rights violation. The Committee is gravely concerned that: (arts. 2, 4, 12, 13 and 15) (a) The special laws provide for enlarged executive powers of administrative detention without adequate judicial supervision, and weaken fundamental safeguards for persons deprived of their liberty. Under

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Section 15 of the Martial Law and Section 12 of the Emergency Decree, a suspect can be held for as long as 37 days without a warrant or judicial oversight before being brought to court. Also, there is no requirement that a detainee be brought before a court at any stage of his/her detention and the location of detention is not always disclosed. (b) Safeguards against torture which are provided in law and regulations are allegedly not respected in practice, and that, in particular, detainees are often denied the right to contact and be visited by family members promptly after their deprivation of liberty; and that some necessary safeguards such as the right to contact a lawyer and to be examined by an independent doctor promptly upon deprivation of liberty are not guaranteed in law or provided in practice. (c) The special laws, in particular Section 7 of the Martial Law and Section 17 of the Emergency Decree, explicitly limit the accountability of officials enforcing the state of emergency by granting immunity from prosecution for serious human rights violation, including acts of torture, in violation of the provisions of the Convention. The Committee is concerned at the cases of deaths in custody of Imam Yapa Kaseng and Mr Sulaiman Naesa which highlight the obstacles to bringing perpetrators to justice. As a matter of urgency, the State party should take vigorous steps to review without delay its existing emergency laws and practice, and repeal those incompatible with the obligations under the Convention, in particular by ensuring: (a) That detainees held without charge under security laws are presented in person in court; (b) That detainees taken into custody are permitted to contact family members, lawyers, and independent doctors promptly following deprivation of liberty, both in law and in practice, and that the provision of these safeguards by the authorities is monitored effectively. (c) That there is no immunity from prosecution for officials who commit offences associated with human rights violations, including torture and ill-treatment. The State party should carry out prompt, impartial and thorough investigations, bring the perpetrators of such acts to justice and, where they are convicted, impose sentences commensurate with the gravity of the acts committed; (d) That no one is coerced into testifying against themselves or others or to confess guilt and that no such confession is accepted as evidence in court, except against a person accused of torture or other ill-treatment as evidence that the confession or other statement was made.35

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(8) It underlined the need for safeguards for detainees, such as prompt access to relatives, lawyers and doctors.36 (9) In noting the country’s signature of the ced, it referred directly and specifically to cases of enforced disappearances and called for preventive and remedial measures, including the need to a specific offence on the issue, prosecution and other action, as follows: Enforced disappearances 14. While welcoming the signature by the State party to the International Convention for the Protection of All Persons from Enforced Disappearance, and the delegation’s statement that ratification is envisioned, the Committee remains seriously concerned at: (arts. 2, 4, 12, 14 and 16) (a) The absence of a definition and the offence of disappearance in the domestic legislation; (b) The continuing and numerous alleged cases of enforced disappearances, in particular against human rights, anti-corruption and environmental activists as well as witness of human rights violations, as shown in the recent case of the disappearance of Pholachi Rakcharoen, a Karen human rights defender known as Billy. It is reported that enforced disappearances are used as a method of harassment and repression against human rights defenders by the security and military forces, in particular in the highly militarized counter-insurgency context in southern Thailand. (c) The failure to resolve most cases of enforced disappearances, to provide remedy to the relatives of missing persons, and to prosecute those responsible, as shown in numerous cases including the disappearances of Somchai Neelaphaijit, Jahwa Jalo, and Myaleng Maranor. The Committee notes with concern the general allegations made by the Working Group on Enforced or Involuntary Disappearances that no case of enforced disappearance has led to the prosecution or conviction of the perpetrator and that reparation including compensation has been extremely limited in Thailand (A/HRC/22/45, paras. 457–466). The State party should take all the necessary measures to prevent enforced disappearances and to combat impunity for the crime of enforced disappearances, in particular by: (a) Taking legal measures to ensure that enforced disappearance is a specific crime in Thai domestic law, together with penalties that take into account their grave nature;

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(b) Ensuring that the cases of enforced disappearances are thoroughly, promptly and effectively investigated, that suspects are prosecuted and those found guilty punished with sanctions proportionate to the gravity of their crimes, even when nobody or human remains was found. The Committee reminds the State party that where there are reasonable grounds for believing that a person has been subjected to enforced disappearance, the authorities shall undertake an investigation, even if there has been no formal complaint; (c) Ensure that any individual who has suffered harm as the direct result of an enforced disappearance has access to information about the fate of the disappeared person, as well as to fair and adequate compensation, including the necessary psychological, social and financial support. The Committee reminds the State party that, for family members, the enforced disappearance of persons may constitute a breach of the Convention; (d) Adopting measures to clarify the outstanding cases of enforced disappearances and facilitating the request to visit by the Working Group on Enforced or Involuntary Disappearances (A/HRC/22/45, para. 471); (e) Accelerating the State party’s process towards the ratification of the International Convention for the Protection of All Persons from Enforced Disappearance.37 It called for action against impunity and for impartial investigations. It implied that the mere payment of compensation as a remedy was not adequate and those responsible for torture should be held to account. Measures should include prompt investigations, criminal sanctions and trial of the military in civilians courts for torture and related offences committed against civilians.38 On the issue of domestic violence, the new law on the subject – the 2007 Domestic Violence Act – was commented upon as not being targeted enough to punish the abuser and was weakened by the classification of such acts as compoundable offences, for which the parties could agree to drop the case and related charges.39 In the presence of the new 2008 law on anti-trafficking, more effective action against human trafficking, including identification of victims, humane treatment, and concomitant prosecution of the traffickers, was needed.40 It advocated protection of human rights defenders and raised the case of lawyer Somchai Neelapaichit who was a victim of enforced disappearance – for long, unresolved.41

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(14) It raised the issue of witness protection and cited names of individuals affected by intimidation and attacks.42 (15) It paid particular attention to the plight of asylum seekers, especially Rohingyas and the need for their protection, coupled with other measures such integrating the principle of non-refoulement into national law, reform of the national immigration law to comply with international law and accession to the international refugee instruments.43 (16) It called for alternatives to detention and in the case of detention, humane conditions.44 It expressed concern at the use of shackles, solitary confinement and the lack of adequate monitoring mechanisms on these matters.45 (17) It called for effective inspection of detention venues and the possible ratification of opcat.46 (18) It recommended follow up of the recommendations of the National Human Rights Commission.47 (19) It called for more training and data collection.48 (20) It urged more effective redress and compensation as well as rehabilitation of the victims.49 Follow up measures will inevitably have to bear in mind the unresolved cases concerning individual victims as well as the more general recommendation from the cat Committee. In addition, the issues singled out below are interrelated closely with the need to raise national laws and practices to the universal standards.

Key Challenges

Definition/Criminalization A clear indication from the Committee’s recommendations is that while there are various national laws indirectly on the subject, the country needs a specific law directly integrating the definition of torture into the national setting; this would help to ensure uniformity of understanding of the concept. Also there is a need to criminalize it directly and explicitly. Currently a draft law is being discussed with provisions against both torture and enforced disappearances. The definition of torture in the draft law follows the cat. It also tries to define cruel, inhuman and degrading treatment as acts committed by officials or their agent causing physical or mental dangers to a person which are not tantamount to torture.50 However, this excludes sanctions imposed under the law.

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Access to Justice Many of the issues raised in the Committee’s comments on the Thai report relate to access to justice and the (lack of) quality of law enforcement. These range from the need for guarantees, such as prompt investigations, access to doctors, lawyers and families for those who are arrested, and quick access to the courts, together with free legal aid. There are implications not only for ordinary situations where the criminal justice system comes into play but also emergency situations such as those present in Southern Thailand where emergency laws such as the Martial Law Act, the Emergency Decree and the Internal Security Act are used, with more restrictive conditions than under ordinary circumstances. Universal Jurisdiction While the country has procedural rules to impose jurisdiction on the wrongdoers, the country needs to adjust its Criminal Code to entrench the notion of universal jurisdiction in the legal system. This implies that crimes committed elsewhere would be open to prosecution in Thailand even if neither the wrongdoer nor victim is Thai. The current approach of Thai law on criminal jurisdiction is based on the nationality and territoriality principles (i.e. committed by Thais or committed by others and harming Thais, or on Thai territory). Action against Impunity After much discussion in the Committee on the need for data on violations, the Thai delegation managed to produce for the Committee statistics on internal discipline against wrongdoers as well as sanctions via the courts.51 However, it was noticeable that the remedy used tended to be compensation given to the victims and their families, rather than officials being punished. The most that happened to the latter was that if they did something wrong, they would be shifted to another location (thus rarely dismissed).52 Follow up measures in compliance with the cat would thus need other sanctions in the criminal justice system. Illegally Obtained Evidence The thrust of the cat is to prohibit evidence obtained through torture. This includes confessions under torture and it implies that other evidence gathered as a consequence of such confessions should also be inadmissible. Thai law already prohibits confessions due to torture. However, there is a slightly anomalous provision of the Criminal Procedure Code which allows illegally obtained evidence, such as evidence gathered as a consequence of confessions,­to be

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considered in court if this is deemed to be beneficial to the trial.53 This is an area where clarification needs to be made concerning criminal procedure to ensure consistency with the cat and where an amendment to the criminal procedure code is required so that the confessions under torture and the consequences thereof are both prohibited and inadmissible in court, without exception. Violence Violence takes many forms. Of concern is the situation in the South and the use of various security laws, as well as the attacks by non State armed groups. The whole issue is ultimately linked with the need for peaceful solutions in the South and the call for more participation by the people of the region in managing their affairs. In regard to domestic violence, the Committee noted that there was a need to move beyond mere conciliation or mediation to more assertive sanctions.54 This invites more emphasis on action against impunity vis-à-vis a whole range of actors in society. Torture/Enforced Disappearances The cat Committee noted that there was a close relationship between torture, cruel/inhuman/degrading treatment and enforced disappearances. The classic case is the Somchai case cited by the Committee. Of note is that on appeal to the highest court, the ultimate judgement issued recently was that no one was found guilty of harming Somchai, even though at first instance one official was found to be guilty. The latter subsequently disappeared and this was then an obstacle to the prosecution process.55 This case raises broader issues of complicity, lack of remedies and the need to counter immunity/impunity of those authorities who might be related to violations. Human Rights Defenders Human rights defenders are affected visibly by malfeasance on the part of some officials and thus the Committee underlined the need for more protection of such defenders. Unlike monitoring under other treaties, the cat committee is very explicit about who is affected by whom. This is also related to the need to comply with the un Declaration on the rights of human rights defenders and to implement it effectively.56 Detention Conditions The Committee was very concerned with detention conditions and the need to find alternatives to detention for less serious cases. Clearly the use of shackles should be abolished. The local system should also explore alternatives to

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detention and more community based rehabilitation programmes. The solution is not merely to construct more prisons nor to employ more prison guards. The international standards and guidance on this issue are plentiful and need to be taken up more readily at the national and local levels.57 Monitoring/Inspection This is a key issue and to some extent, the National Human Rights Commission fulfils this role. As this should be done preventively, there is all the more reason to ratify the opcat.58 Various mechanisms help to monitor the situation and pressure for justice, including the Ombudsman. The role of civil society, ngos and active media should not be underestimated and should also be maximized in this regard. Redress While there is national legislation on this issue and large disbursements are made to the victims and their families, there is a need for a more effective variety of remedies and the coverage should be based on non-discrimination, offering assistance to non-Thais (including those in an irregular situation). In particular, there is the anomalous practice of merely shifting wrongdoers to other positions without subjecting them to appropriate sanctions and this should be countered.59 Effective Casework The value added of the cat and its Committee is that in its scrutiny of a country and recommendations, it is more detailed than other treaty bodies on specific casework, victims and perpetrators. The names of cases/victims are referred to openly in the discussions and are part of the concluding observations as well as recommendations for follow-up.60 This invites more targeting of casework for follow up at the national level and has key implications for law enforcement authorities at both the national and local levels. Non-nationals Mistreatment of a number of non-nationals who are already in a disadvantaged position remains pervasive. This is particularly linked with the cat’s provision on non-refoulement and the need for humane treatment of asylum-seekers.61 Despite claims of humane treatment by the authorities, lapses in the implementation process are well covered by ngo and media related reports. This is also an area where international principles such as non-refoulement need to be expressly made part of national law, together with attenuation of the application of immigration law so as to broaden protection for those who are not

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protected by their country of origin. While Rohingyas were mentioned specifically in the reporting process and discussions, many other groups are also of concern. In 2015, the deportation or refoulement of a group of Uighurs back to their country of origin raised an international outcry and serves as an important call to integrate international standards into national law, policy and practice.62 1 The Convention has 33 Articles. The procedure for individual communications is found in the Convention. Its Protocol sets up a sub-committee to undertake visits to help prevent violations. The country accepted the inquiry procedure under Article 20 of the cat. For text and developments, see: www.ohchr.org. 2 cat, ibid., Article 1. 3 Thailand’s initial report, CAT/C/THA/1 (July 2013), para. 2. 4 Concluding Observations, un Doc.CAT/C/THA/CO/1 (June 2014). 5 Constitution 2007, supra note 3. 22. In addition, the provisions in the Constitution have prescribed a guarantee of equality as well as rights and liberties as follows: – Section 30 – All persons are equal before the law and shall enjoy equal protection under the law. Men and women shall enjoy equal rights. Unjust discrimination against a person on the grounds of differences in origin, race, language, sex, age, disability, physical or health conditions, personal status, economic or social standing, religious beliefs, education or constitutionally political views, shall not be permitted. Measures prescribed by the State in order to eliminate obstacles or promote persons’ ability to exercise their rights and liberties as other persons do shall not be deemed as unjust discrimination under paragraph three. 23. The provision under Section 30, paragraph three, prescribes rules against discrimination, not only applying to discrimination by State officials, but also governing discrimination on the part of private entities, such as discrimination in recruitment for employment. It is, therefore, understood that the Constitution has already covered discrimination against persons pursuant to the definition of ‘torture’ in the Convention. – Section 32 – A person shall enjoy rights and liberties in his/her life and security of a human person. Torture, inhumane acts or punishment by cruel or inhuman means shall not be carried out; provided that punishment under judgments of the Courts or by virtue of the law shall not be deemed punishment by a cruel or inhumane means under this paragraph. Arrest and detention of persons shall not be made except by order or warrant issued by the Courts or if there is some ground as provided by the law. Search of a person or an act affecting the rights and liberties under paragraph one shall not be made, except by virtue of the law. In the case where an act affects rights and liberties under paragraph one, the injured person, public prosecutor or any person acting for the benefit of the injured person shall have the right to bring a lawsuit to the Courts so as to put an end to or annul such act, and to impose appropriate measures to provide remedy for damage occurring therefrom.

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24. The provisions of Section 32 are a proven guarantee of persons’ right to life and security of a human person. In paragraph two, it is clearly stated that torture, cruel, inhuman or degrading treatment or punishment is not allowed. The meaning of this provision covers any act which may be committed by persons other than State officials. This provides guarantees which cover the meaning of ‘torture’ as prescribed in article 1 of the Convention. However, at the end of Section 32, paragraph two, the provision stipulates that punishment by the court’s judgment or pursuant to the provisions of the law such as capital punishment or life imprisonment is not regarded as cruel or inhuman punishment. 25. The final paragraph of Section 32 stipulates that the Court shall examine and issue an order in a case where a person is tortured or inhumanely treated to provide protection for such person. If such ground is proven true, the Court shall issue an order to put an end to or annul such act, and shall prescribe methods to remedy the damage thus caused to such person. This provision is in line with the principle which stipulates that injured parties subjected to torture shall obtain remedy for the damage inflicted. 26. In regard to the process of ensuring rights for injured persons and alleged offenders in light of acts of torture being committed, the Constitution stipulates the rights of persons in the justice process/system which are in line with the guarantees prescribed in the Convention as follows: Section 40 – A person shall have rights in the judicial process as follows: (1) Right to access judicial process easily with convenience, promptness, and without discrimination; (2) Fundamental rights in the judicial process which, at least, guarantees the right to openly conducted trials; the right to be informed of matters of fact and to examine relevant documents adequately; the right to testimony, contestation, and evidence in the case; the right to object to a judge who is not impartial; the right to have cases granted hearing en banc; and the right to be informed of grounds for the decision given in adjudication, judgment, or orders; (3) Right to a just, prompt and fair trial; (4) An injured person, alleged offender, plaintiff, defendant, interested parties, or witnesses to a case shall have the right to appropriate treatment in the judicial process, including the right to be investigated correctly, promptly and fairly, and not to testify against himself; (5) An injured person, alleged offender, the accused, and witnesses to a criminal case shall have the right to necessary and appropriate protection and assistance from the State. Compensation, remuneration and expenses shall be provided by law; (6) Every child, youth, woman, older person or person with disabilities shall have the right to appropriate protection in judicial processes, and shall have the right to appropriate treatment in cases related to sexual offences; (7) An alleged offender, and the accused in a criminal case shall have the right to just, prompt and fair investigation or trial with adequate opportunity to defend his case, the right to examine or to be informed of evidence, the right to defense counsel, and the right to be released on bail; (8) A person shall, in civil action, have the right to appropriate legal assistance from the State. paras. 22–26.

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6 Ibid. It might lead to severer punishments, implied by this observation: 1. Principles in criminal laws 29. There are core provisions under the Criminal Code which stipulate liability and offences related to torture pursuant to article 1 of the Convention as follows: 30. Regarding offences pertaining to torture as prescribed in article 1 of the Convention, Thailand has made an interpretative declaration thereupon (i.e. on article 1) relating to the definition of the term “torture.” Since Thailand’s Criminal Code currently in force does not stipulate any specific provision on the definition thereof, Thailand’s interpretation of the meaning of “torture” is based on its understanding pursuant to the Penal Code currently in force. 31. Regarding article 4 which provides that all forms of torture constitute offences punishable under criminal laws, with the implication that this principle shall be applied to any attempt, complicity and participation in an act of torture, Thailand construes the meaning of such cases in compliance with the Penal Code currently in force. 32. In this regard, there are provisions in Thailand’s current Criminal Code concerning attempts at, complicity in committing, and participation in an offence as follows: – Section 80 – Whoever commences to commit an offence, but does not commit it continuously, or commits it through, but does not achieve its end, is said to attempt to commit an offence. Whoever attempts to commit an offence shall be liable to two-thirds of the punishment provided by the law for such offence. – Section  105 – Whoever attempts and commits a minor/petty offence shall not be punished. 33. Whereas an act taken as complicity or participation in such an offence is subject to the provisions in Sections 83–86 as follows: – Section 83 – In any offence committed by two or more persons, those taking part in the commission of such an offence are said to be principals, and shall be liable to the punishment provided by the law for such an offence. – Section  84 – Whoever, irrespective of whether by employment, compulsion, threat, hire, asking as favor, or instigation, or by any other means, causes another person to commit any offence is deemed to be an instigator. If the employed person commits the offence, punishment shall be imposed on the instigator as a principal. If the offence is not committed, irrespective of whether it is because the employed person does not consent to commit, or has not yet committed, or by any other reason, the instigator shall be liable to only one-third of the punishment provided for such offence. – Section 85 – Whoever advertises or announces to the general public to commit an offence and such offence is punishable with imprisonment of not less than six months, that person shall be liable to one-half of the punishment provided for such offence. If the offence is committed due to the advertisement or the announcement according to the first paragraph, the person who made such advertisement or announcement shall be imposed with the punishment as a principal. – Section 86 – Whoever, by any means, does any act to assist or facilitate the commission of an offence by another person, before or at the time of commission of the offence, even

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though the offender does not know of such assistance or facilitation, is said to be a supporter of such offence, and shall be liable to two thirds of the punishment provided for such offence. – Section  106 – A supporter to the commission of any minor offence shall not be punished. 34. In regard to interpretation pursuant to the Penal Code concerning participation in an offence, the wrongdoer must either have taken part in the criminal act as a principal who is involved in the action and exhibits collective mens rea; or as a person who employs or makes advertisement, and thus causes another person to commit an offence; or as a supporter who facilitates or renders assistance in the commission of an offence by another person with a view to provide support therein. 36. In regard to the deliberation upon grounds for offences stipulated in the Penal Code which lie within the scope of torture pursuant to the Convention, the Penal Code has established the following provisions on offences related thereto: – Section 290 – Whoever, without intention to murder, causes death to any person by inflicting the offence of battery on such person shall be liable to imprisonment from three years to fifteen years. Where the offence is committed under any of the circumstances as listed in Section 289, the offender shall be liable to imprisonment from three years to twenty years. – Section 295 – Whoever causes bodily or mental harm to another person is deemed to commit the offence of battery, and shall be liable to imprisonment for a term not exceeding two years or a fine not exceeding four thousand Baht, or both. – Section 296 – Whoever, commits the offence of battery under any of the circumstances as listed in Section 289 shall be liable to imprisonment for a term not exceeding three years or a fine not exceeding six thousand Baht, or both. – Section 297 – Whoever commits the offence of battery, and thereby causes grievous bodily harm on any other person shall be liable to imprisonment from six months to ten years. 37. Grievous bodily harm means any of the circumstances as follows: (1) Blindness, deafness, having been severed tongue or loss of the sense of smell; (2) Loss of reproductive organs or ability; (3) Loss of an arm, leg, hand, foot, finger or any other organ; (4) Permanent disfigurement of face; (5) Miscarriage; (6) Permanent mental disorder; (7) Disability or chronic illness which may last throughout life; (8) Disability or illness with extreme suffering for more than twenty days or illness which causes inability to engage in daily life activities for more than twenty days. Section 298 – Whoever commits an offence in Section 297 under circumstances as prescribed in Section 289, shall be imprisoned from two years to ten years. paras. 29–37. 7 Ibid., para. 38. Also: Protection of injured persons subjected to torture inflicted to obtain a confession 43. Any person subjected to torture inflicted to coerce him to give statement during inquiry is regarded as an injured person in a criminal case which may involve an offence against such

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person’s body or his liberty as provided by the Penal Code. Such person has the right to petition or file a case to court. In addition, an act of assault is regarded as a non-compoundable­ offence. Thus, if a witness has knowledge of such offence being conducted, such person may make an accusation to the inquiry official in order to press charges. para. 43. 8 Ibid.: Article 1- Definition of torture 56. In Thailand, the term “torture” has been stated in several important laws, viz the Constitution, the Penal Code and the Criminal Procedure Code as follows: 57. Section 32, paragraph two of the Constitution, stipulates that, an act of torture, a brutal act or punishment by cruel or inhuman means shall not be committed; provided that punishment under judgments of the Courts or by virtue of the law shall not be deemed to be punishment by a cruel or inhuman means under this paragraph. 58. Meanwhile, the Penal Code does not specifically define “torture” as a particular offence in its own right, but provides that torture is a ground of a grave nature that leads to an increase in punishment in certain criminal offences, namely aggravated battery (Section 296), assault and battery causing grievous bodily harm (Section 298), murder (Section 289(5)), kidnapping for ransom (Section 313, paragraph two), and the offence of gang-burglary (Section  340, paragraph four and Section  340 bis, paragraph five). The Criminal Procedure Code, Section 135, stipulates that “In taking a statement of the alleged offender, the inquiry official is prohibited from making any arrangements leading to a guarantee, promise, threat, deception, torture, using force or any unlawful acts in order to induce the alleged offender to give any statement regarding the charge against him.” 59. However, the three important laws described above do not give any specific definition of the term “torture.” In Thailand’s interpretative declaration made upon accession as a State party to the Convention, it was stated that the country had not as yet adopted any specific definition of the term ‘torture’ that would correspond to the definition given in the Convention as such. Therefore, Thailand in the meantime interprets the meaning of the term ‘torture’ as per its Penal Code. However, the country shall subsequently undertake legal amendments to bring its internal laws further in line with the Convention. 60. At the time of the preparation of this report, however, Thailand, through the Office of the Attorney General and the Ministry of Justice, was endeavoring to draft a bill to amend the Penal Code by adding a chapter on offences related to torture specifically, with a definition of the term ‘torture’ in line with the Convention. In addition, the draft bill stipulates higher levels of punishment, and prescribes that attempts at and participation in offences of torture shall be deemed as tantamount to completion of the act of torture as such, or to undertaking to commit an act of torture per se. The drafting of the Act on the Amendment of the Penal Code clearly represents Thailand’s appreciation of the significance of torture prevention, and its commitment to undertake amendments to bring internal laws in line with the Convention to the greatest extent, as propounded in the interpretative declaration made during its accession as a State Party to the Convention. paras. 56–60. 9 Ibid., para. 62. 10 Ibid.: Article 2, paragraph 2- Preventive measures against torture in a state of war, threat of war, lack of internal political stability, or any other public emergency.

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70. In regard to the issues under article 2, paragraph 2 of the Convention, the Thai legal framework through provisions under Section 32 of the Constitution clearly and affirmatively stipulates that “A torture, brutal act or punishment by a cruel or inhuman means shall not be made; provided that punishment under judgments of the Courts or by virtue of the law shall not be deemed punishment by a cruel or inhuman means under this paragraph.” Under this provision, torture is prohibited under Thai laws. As the Constitution clearly stipulates a provision prohibiting torture, acts or subsidiary laws or orders which contradict such principle shall not take effect. para. 70. 11 Ibid.: 71. Additionally, current Thai laws do not authorize competent officers to perform acts constituting torture by claiming that such acts are undertaken out of necessity or for any other reason, for instance under circumstances of war, lack of political stability or any other emergency situations. The prohibition under this provision applies to invoking such laws as the Martial Law Act B.E. 2457 (1914), the Emergency Decree on Public Administration in Emergency Situations B.E. 2548 (2005), and the Internal Security Act B.E. 2551 (2008), or any other laws. Article 2, paragraph 3- Orders from superior officers’ or by the authority of public officials as well as military power may not be invoked as justifications for torture. A person is also prohibited from invoking orders issued by one’s superior officers as justifications for committing offences of torture. 72. Acts of torture are not permitted under the Constitution. Therefore, invoking the power of superior commanders and military authorities to justify acts of torture or superior orders is not permitted under the Constitution and the Penal Code. Persons committing acts of torture pursuant to superior orders shall be liable to punishment in accordance with the Penal Code, which is a practice in line with Article 2 of the Convention. 73. Based on the provisions and regulations described above, it is evident that Thai laws and regulations have been developed with the aim of preventing torture undertaken with a view to obtaining confession or any other information, and preempting inhuman treatment against the convicted. In regard to the prevention of excessive abuse of power on the part of public officials, information materials have been produced to introduce guidelines on the use of force towards arrested persons in accordance with Rules of Engagement (RoE) which conform to international standards. paras. 71–73. 12 Ibid.: Article 3– Prohibition against expulsion, repatriation or extradition of persons to countries where they may be subjected to torture. 74. Thailand has not stipulated any specific provision in this regard as yet. However, if such cases involve victims of human trafficking, the Human Trafficking Prevention and Suppression Act B.E. 2551 (2008), Section 38 specifically provides that in repatriating foreign victims of human trafficking to their countries of residence or their home countries, Thailand shall have regard to the safety and wellbeing of such persons. 75. Pertaining to repatriation, Thai law has prescribed approaches to the exercising of discretion on the part of competent authorities. In practice, military officers, police officers, immigration officers, public prosecutors, and officers of other public agencies­

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chapter 6 have acquired the understanding of the non-refoulement principle whereby foreign nationals shall not be sent from or forced out of the country if there appear to be convincing grounds that any such person thus forced out of the country might be subjected to danger or torture. Thailand’s adherence to this principle is widely acknowledged and has accordingly earned Thailand recognition internationally. 76. The repatriation of the Hmong Laotian immigrants was implemented pursuant to the agreement concluded between the Lao Government and the Royal Thai Government. The Lao Government places an emphasis on the principle of national consensus and is pleased to welcome the Hmong Laotian immigrants residing in Thailand’s Hmong Laotian control areas back to Lao pdr. The Lao government assured the Royal Thai Government that those immigrants would neither be prosecuted nor persecuted upon their return. Instead, they shall be provided with land for them to till, as well as the required expertise and appropriate funding in order to enable them to earn their living in their own heartland where they were born and once lived. Thailand takes this stance as a government-level promise to preempt any maltreatment or torture of the Hmong Laotian immigrants repatriated thereby. 77. The repatriation was handled in a cautious and discrete manner, avoiding any harsh measures. Authorities concerned undertook every possible step to prevent any cases of family members becoming separated during the repatriation process. The mission was successfully implemented. The Hmong Laotian immigrants have now settled in areas allocated by the Lao Government with accommodation and farming land handed over to them. These areas are fully equipped with the necessary basic infrastructure. As of now, there have been no reports of any repatriated Hmong Laotians being subjected to danger or being prosecuted. This state of affairs has been confirmed by members of the diplomatic corps and representatives from international organizations who have visited the areas to inspect the livelihood and ensure the safety of the repatriated Hmong Laotians. paras. 74–77. Ibid., paras. 80–81. Ibid.: 86. Current Thai laws are partially in line with Article 5 of the Convention in that Thai courts may take legal action regarding acts of torture that occur within the kingdom or on board Thai vessels or Thai aircraft. However, where acts of torture occur either outside the kingdom or on board other than Thai vessels or Thai aircraft, Thai laws cannot be invoked to sentence offenders in cases involving torture under these circumstances. In particular, an action in which Thai laws are invoked may be initiated only when one condition is satisfied: an injured person must lodge the request for legal action. 87. At present, Thailand has undertaken necessary steps to amend the Penal Code, by adding provisions to Section 7, which originally stated that “Whoever commits the following offences outside the Kingdom shall be liable to sentences in the Kingdom.” Sub-Section (3/1) shall be added with the provision therein outlining offences which meet the conditions set forth in Section 7. Therefore, the prescription is: “(3.1) offences related to torture as provided in Section 308/1, Section 308/2 and Section 308/3.” Such amendment of the Penal Code, once completed, will enable the application of Thailand’s Penal Code and judicial process to any act of torture, and to the prosecution­

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and punishment of offenders, irrespective of whether the offences in question occur inside or outside the kingdom. This principle still applies, even though such acts of torture may not involve any point of connection with Thailand. In other words, even though both the offender and the injured person do not hold Thai nationality, Thailand may nonetheless implement this requirement in accordance with international punishment standards, in line with the provisions clearly stipulated in Article 5 of the Convention. paras. 86–87. Ibid.: Implementation in response to complaints on torture 93. After Thailand’s accession as a State Party to this Convention, inspection/survey was conducted regarding the handling of complaints by state agencies concerned with such charges. It has been found that the number of complaints on torture has decreased. This is because each agency has taken a more active stance/role in this regard. Agencies have laid down ethical standards for officials to observe in performing their duties and to enhance their understanding thereof. Each agency has also conducted on-going regular training to disseminate knowledge on human rights to their officials. Their operations are subject to regular inspection processes by independent domestic and foreign organizations. This development encourages high-ranking executives and operational supervisors to closely supervise their operations, to preempt any violation of the Convention, and to take disciplinary and criminal action against offenders. Complaints on torture have decreased accordingly. Verification by private non-governmental agencies points to the same conclusion, i.e. that torture statistics have decreased in comparison to the state of affairs prior to Thailand’s accession to this Convention. 94. Additionally, a survey to examine facts/fact-finding pertaining to torture from the agencies directly handling human rights complaints, e.g. the Office of the National Human Rights Commission and the Office of the Ombudsman has shown that in certain cases, there is evidence of torture. Under the mandate, recommendations have been issued that disciplinary action be taken against officials in agencies in which offences are found to have occurred. For example, complaints have been lodged and verified by the Office of the National Human Rights Commission, and recommendations have been made to the agencies concerned. Generally, corrective measures have been undertaken, and in some cases, offenders have been prosecuted. Simultaneously, complaints at the Office of the Ombudsman pertaining to torture in prisons have been addressed and redressed by the Department of Corrections per se. It can therefore be inferred that measures have been established and implemented to reasonably control torture to a certain degree. 95. In addition, a review conducted by the Lawyers’ Council of complaints pertaining to torture, as provided in the Convention, shows that in the cases of torture inflicted by public officials in government agencies, the Lawyers’ Council has stepped in to provide assistance by filing actions against the relevant officials and respective government agencies. It has also been found that in cases where the Lawyers’ Council has undertaken proceedings to assist injured parties in handling legal cases in this regard… paras. 93–95.

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chapter 6 Ibid., para. 96. Ibid.: 97. The criteria governing extradition of criminals according to the Criminal Extradition Act B.E. 2551 (2008), Section 7, specifies which categories of offences qualify for extradition of criminal offenders. These are criminal offences under the laws of the requesting country and of Thai law as well. They carry sentences of capital punishment, life imprisonment, or other forms of limitations on liberty for not less than one year. This is irrespective of whether or not these offences are classified as belonging to the same category of offences, or whether or not this applicable legislation carries the same name in either country. 101. In order to request extradition of a criminal to Thailand, the public prosecutor or state agency requesting the said extradition must file a proposal to the Central Authority (the Office of the Attorney General). If the Central Authority deems it appropriate, the public prosecutor in charge shall prepare a criminal extradition request dossier together with other supplementary documents. The preparation of the formal request and enclosed documents shall be in compliance with the regulations prescribed by the Central Authority, pursuant to Section 30, paragraph three. 102. The Central Authority shall submit a formal request for extradition of a criminal to Thailand through methods provided in a treaty concluded between Thailand and the country in question, if such a treaty already exists, or through established diplomatic channels where no such treaties thereon between both parties exist. 103. As of now, Thailand has concluded extradition treaties with ten countries: i.e. the United Kingdom (including Canada, Malaysia, and Australia), Belgium, the Republic of Indonesia, the Republic of the Philippines, the United States of America, the People’s Republic of China, the Republic of Korea, Democratic the People’s Republic of Laos, the People’s Republic of Bangladesh, and the Kingdom of Cambodia. 104. The provisions in the ten afore-mentioned treaties and Section 7 of the Criminal Extradition Act B.E. 2551 (2008) stipulate that a criminal extradition agreement must concern criminal offences which, pursuant to the laws of both the requesting country and Thailand, carry sentences of capital punishment or life imprisonment, or other forms of limitation on liberty for not less than one year. This is irrespective of whether or not these offences are classified as belonging to the same category of offences, or whether the relevant laws carry the same name in either country. Also, these offences must not be of a political or military character. paras. 97–104. Ibid., para. 107. Ibid., para. 114. Ibid.: 125. On the issue of the application of instruments of restraint to prisoners in accordance with Section14 of the Corrections Act B.E.2479 (1936), a regulation was issued prohibiting the use of instruments of restraint on certain types of inmates, or even in some cases where all the criteria have been met for the order to apply instruments of restraint. The Department of Corrections has issued guidelines on the use of instruments of restraint on inmates with special consideration given to the use of in­ strument while inmates are, in particular, on the premises of prisons. There has been an agreement between the Department of Corrections and Office of Ombudsmen

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whereby the use of instruments of restraint shall be limited and shall be used as becomes necessary only. In addition, the current tendency is very much in favor of the application of technology in lieu of instruments of restraint so as to conform to international standards. This represents a further step towards greater protection of inmates’ rights. Major developments in this regard are as follows: – No instrument of restraint shall, under any circumstances, be applied to inmates for the purposes of imposing disciplinary punishment; – A committee was appointed to monitor and evaluate the condition of inmates upon whom instruments of restraint are being applied. The use and removal of those instruments shall be reviewed every 15 days, etc. 126. At present, problems related to the use of instruments of restraint have been significantly alleviated. In the past, the Department of Corrections had to repeatedly issue letters or memoranda to ensure that all parties concerned reached a common ground – i.e. the Department does not entertain the idea of applying instruments of restraint on inmates due to the regard the Department has for human dignity and the rights and liberties of individuals. That is, with the exception of grounds and necessity as provided by law, rules and regulations. It was often the case that prison officials placed instruments of restraint on inmates for illegitimate reasons such as severe offences, concurrence of offences, or being of foreign nationality. The Department has monitored the functioning of prison superintendents or directors and subjected them to imminent action if complaints are lodged and injury caused. Currently, there are signs of improvement. However, such letters are still issued which closely supervise the functioning of prisons to ensure that the prison administration conforms closely to the Department’s instructions. 127. Regarding the use of instruments of restraint on accused persons or unconvicted inmates, restraints are still necessary when taking them outside the prison for court hearings or other matters. It is at the discretion of officials in order to prevent attempts at escape or assaults on officials. Also, Section 204 of the Penal Code prescribes punitive measures on officials who, through negligence, allow prisoners to escape. Thus, in practice, officials tend to use instruments of restraint when taking prisoners outside prisons, and this is deemed a necessary measure. However, the Department of Corrections is deliberating on the use of alternative methods in lieu of shackles for the purpose of preventing inmates from escaping, and is currently studying practices in other countries. 128. In response to past complaints of inmates lodged to the Office of Ombudsmen pertaining to the use of instruments of restraint, examination of the operation of the prisons in question were carried out. Then guidelines were prescribed emphasizing that corrections officials cautiously apply discretion to the use of instruments of restraint and only as necessary. These guidelines were sent out in the form of circulars. Officials were then dispatched to verify and monitor the operations. Advice and training on discretionary use were also provided to ensure that prison officials truly understand and appreciate treatment towards inmates, in line with international standards, and to prevent any operation which might affect human dignity, or lead to excessive use of official discretion pertaining to the application of instruments of restraint more than was absolutely necessary. It is evident that the Royal Thai

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chapter 6 government has implemented measures to prevent the use of instruments of restraint. The government has also ensured that the officials concerned exercise their power in this matter with greater prudence. paras. 125–128. Ibid., paras. 129–131. Ibid.: 136. However, there are, at present, no special provisions in Thai legislation which call for the implementation of fair and objective criminal investigation in response to charges lodged for acts of torture. This is because the Criminal Procedure Code is applied, as a normal course of practice, throughout the criminal investigation process. Admittedly, staff of agencies invested with the power to carry out criminal investigations may well be involved in acts of torture against the accused. In any such case, requests may be lodged to have the inquiry official in question replaced, or an official placed in charge of the case who has no relation to the accused, as appropriate. para. 136. Ibid.: 141. Thailand’s witness protection measures are implemented according to the Criminal Case Witnesses Protection Act B.E.2546 (2003), Section 6 and Section 7, which provide general protection measures for witnesses in criminal cases. For example, they arrange for witnesses to be harbored in safe places, preventing disclosure of the witnesses’ names, family names, addresses, photos or other information which may lead to their identification. Arrangements can also be made so as to have administrative officers or police officers on guard for their protection, subject to the prior consent of the witness or the consent of persons in question. 142. There are special witness protection measures which are applied in important cases as specified by law, such as changes of residence, names and surnames, and identification registration documents which can be used to identify witnesses, etc. 143. Because Thai laws have no provisions naming torture as a specific offence, the special witness protection measures may not be applied in these cases as they are not covered under specific offence categories listed by the law for such purposes. However, witnesses in these cases are entitled to protection through general measures which are capable providing them with efficient protection. 144. One major concern lies in the fact that an organization in charge of protecting witnesses may well be the organization with which the public official accused of torture is affiliated. This may potentially cause unfairness and bias in rendering witness protection. A process should therefore be developed whereby other agencies are able to take charge of witness protection in such cases in which conflict of interests might occur between the witness being protected and the organization providing protection. However, as for complaints on non-criminal cases, e.g. complaints requesting disciplinary action, etc., to which measures under the Witnesses Protection Act may not be applied could well constitute a loophole in the provision of protection to petitioners in torture cases pursuant to Article 13 of the Convention. Administrative orders should therefore be issued to agencies concerned, or to agencies which handle complaints such that these agencies provide further protection to petitioners in torture cases as per the spirit of Article 13. paras. 141–144. Ibid.: 153. Firstly, the law limits the types of offences, stipulating that only the injured persons, as a result of the offences listed at the end of the Act, shall be entitled to such

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compensation. The offences listed are offences under Part 2 (Specific Offences) of the Criminal Code – i.e. – Title 9 Offences Relating to Sexuality, Sections 276–287; – Title 10 Offence Relating to Life and Body; – Chapter 1 Offences against Life, Sections 288–294; – Chapter 2 Offences against Body, Sections 295–300; – Chapter 3 Offences of Procuring Abortion, Sections 301–305; – Chapter 4 Offences of Abandonment of Children, Sick Persons or Older Persons, Sections 306–308. 154. Accordingly, certain injured persons are not entitled to such compensation – i.e. injured persons in offences without bodily or mental assault, but related to violations against liberty, such as persons injured in offences under Section 309 or Section 392. paras. 153–154. Ibid.: 155. Considerations pertaining to compensation shall be made by a committee in charge of determining whether or not the injured persons shall be entitled to compensation. If the committee decides in favor of the injured person(s), the amount of compensation due, taking into consideration the circumstances and severity of the offences, conditions of the damage inflicted, and opportunities for the injured parties to obtain remedies for the damage through other means. 156. Secondly, limitations specified by the law stated that claims for compensation had to be submitted within one year. In such a period of time, although victims of torture are no longer being tortured, they might still live in the area or still be under the influence of the offenders. Additionally, failure to effectively inform the public meant that victims were not aware of their rights. As a result, injured parties did not always exercise their rights, or they would attempt to exercise their rights after the one-year deadline had expired. 157. Furthermore, the final paragraph of Section 32 under the Constitution provides the Court with the power to order remedies for victims of torture in cases where certain acts have violated the rights and liberties of persons pursuant to paragraph one. The injured persons, through the Public Prosecutor or other persons acting on their behalf in torture cases, have the right to file a motion to the court to issue orders to put an end to or annul such acts. The court may also prescribe methods deemed appropriate to provide remedies to compensate for damages thus caused. 158. At the time of preparing the draft of this report, the Office of the Attorney General and the Ministry of Justice are in the process of drafting a Bill on the Amendment of the Criminal Procedure Code so as to render more effective and comprehensive the remedies for damage caused by violations of rights and liberties under Section 32 of the Constitution. This also constitutes a guarantee that despite any revision of the Constitution, these principles shall still be applied for the protection of victims against violations of their rights and liberties concerning life and security of the persons. paras. 155–158. Ibid.: Prohibitions under the Criminal Procedure Code 166. The Criminal Procedure Code, Section 135, stipulates prohibition against intimidation or torture, coercion by use of force, or other wrongful acts to compel or commit

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chapter 6 any unlawful act to induce the defendant to give a statement. Section 226 prohibits the Court from hearing any evidence obtained by means of intimidation, deception, coercion by use of force or any other unlawful act. This includes evidence which, in itself would normally be admissible in court, but was obtained by officials using wrongful means. Wrongful means naturally include serious assault on body or mind, which also constitutes torture in accordance with the definition in this Convention. Therefore, as these prohibitions are stipulated affirmatively in the Criminal Procedure Code, it may be inferred that Thailand has already established a legal framework which is in line with and in accordance with article 15 of this Convention in this respect. para. 166. Ibid., para. 167. ngo reports: National Human Right Commission of Thailand, Alternative Report submitted by the nhrct on Thailand’s Implementation of the cat, 2014; Amnesty International, Thailand: Submission to the un cat (London: ai, 2014); Childline Thailand Foundation, uncat 52en Session on Thailand, Submission on the Issue of Corporal Punishment to inform the Review of Thailand by un cat during 52nd Session, April–May, 2014; Global Initiative to End All Corporal Punishment of Children, Briefing on Thailand for the cat 52nd Session, April–May 2014; International Commission of Jurist (icj), Submission of icj to cat in view of the Committee’s Examination of Thailand’s Initial Report under Article 19 of cat, April 2014; Federation Internationale des Droits de l’Homme (fidh), Shadow Report on the situation of torture and ill treatment of prisoners in Thailand, 2014; Cross Cultural Foundation et al., Shadow Report on Thailand’s Implementation of cat, April 2014; Justice for Peace Foundation, The Intersection of Enforced Disappearances and Torture in Thailand: Report – cat, 2014; Association for the Prevention of Torture (apt), un cat: apt Submission on Thailand, 2014. These are documented in: www.ohchr.org. Concluding Observations, supra note 4: 5. The Committee welcomes the State party’s ratification of the Convention on the Rights of Persons with Disabilities, in 2008. 6. The Committee welcomes the following legislative measures taken by the State party in areas of relevance to the Convention, including the adoption of: (a) The Penal Code Amendment Act (Nos. 19 and 20) in 2007 and (No. 21) in 2008; (b) The Criminal Procedure Code Amendment Act (Nos. 25 and 26) in 2007. (c) The Domestic Violence Victim Protection Act, in 2007; (d) The Anti-Trafficking in Persons Act, in 2008; (e) The Juvenile and Family Court and Procedures Act, in 2010. paras. 5–6. Ibid., para. 4. Ibid.: Declarations under Articles 1, 4 and 5 of the Convention 8. The Committee is concerned about the interpretative Declarations that the State party made at the time of accession to the Convention, on 2 October 2007, in which the State party interprets the term ‘torture’ in Articles 1 and 4 and 5 to be implemented in conformity with the Penal Code currently in force, which does not contain a definition of torture. The Committee notes that the State party, in its Declarations, commits to “revise its domestic law to be more consistent with Articles 1, 4, and 5, at the earliest opportunity” and repeated this commitment in the Report (article 60) and in the

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oral dialogue. It further notes that the State party’s core report states that declarations made at the time of ratification of other human rights treaties have been removed from other instruments because of commitments made at the time of the universal periodic review. (arts. 1, 4 and 5). Noting that the declarations raise questions as to the State party’s overall implementation of its treaty obligations, and appreciating the statement made by the representative of the State party that the possibility of withdrawal is being discussed, the Committee­recommends that the State party consider withdrawing the declarations to articles 1, 4 and 5 of the Convention promptly to ensure it is in compliance with the requirements of the Convention, and gives effect to all provisions of the Convention. para. 8. Ibid.: Definition and criminalization of torture 9. While noting that Section 32, paragraph 2 of the Constitution of Thailand prohibits acts of torture, the Committee is concerned about the absence of a definition of torture and the absence of an offence of torture in accordance with the Convention in the State party’s legal system. In addition, the Committee is concerned that the draft penal code provision on torture (a) does not reflect the non-exhaustive list of purposes for which torture may be inflicted nor does it include discrimination as a purpose; (b) would require a higher standard of pain and suffering than set forth in article 1 of the Convention; (c) contains a the definition of “public official” that is more limited than set forth in the Convention; (d) does not explicitly prohibit affirmative defences to the crime of torture; and (e) does not explicitly prohibit the application of a statute of limitations. The Committee appreciates the delegation’s reassurance that the draft can still be revised. This shortcomings cited above seriously hamper the implementation of the Convention by preventing and prosecuting torture in Thailand. The Committee notes the State party’s commitment to revise its Penal Code and Criminal Procedure Code, including the draft amendment, to define torture and include offences of torture in line with Articles 1 and 4 of the Convention. (arts. 1 and 4) Recalling the Committee’s General Comment no. 2 (2007), the Committee urges the State party to revise the legislation without delay: (a) To adopt a definition of torture that covers all the elements contained in article 1 of the Convention. (b) To include torture as a separate and specific crime in its legislation and ensure that penalties for torture are commensurate with the gravity of this crime, as required by article 4, paragraph 2, of the Convention; (c) To ensure that acts amounting to torture are not subject to any statute of limitations. para. 9. Ibid.: Allegations of widespread use of torture and ill-treatment 10. While noting with appreciation the State party’s public commitment to the Committee that it fully recognizes the importance of the Convention, and its acknowledgement of the Committee’s concerns about the need for impartial and independent investigations, the Committee remains seriously concerned about the continued

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chapter 6 allegations­of the widespread practice of torture and ill-treatment of detainees, including as a means to extract confessions, by the military, police, and prison officials in the South and other parts of the country. (arts. 2 and 16) The Committee calls upon the State party to take immediate and effective measures to investigate all acts of torture and ill-treatment and prosecute and punish those responsible with penalties that are consistent with the gravity of their acts. In addition to these measures, the State party should unambiguously reaffirm the absolute prohibition of torture and publicly condemn practices of torture, accompanied by a clear warning that anyone committing such acts or otherwise complicit or participating in torture will be held personally responsible before the law for such acts and will be subject to criminal prosecution and appropriate penalties. para. 10. Ibid. Definition and criminalization of torture 9. While noting that Section 32, paragraph 2 of the Constitution of Thailand prohibits acts of torture, the Committee is concerned about the absence of a definition of torture and the absence of an offence of torture in accordance with the Convention in the State party’s legal system. In addition, the Committee is concerned that the draft penal code provision on torture (a) does not reflect the non-exhaustive list of purposes for which torture may be inflicted nor does it include discrimination as a purpose; (b) would require a higher standard of pain and suffering than set forth in article 1 of the Convention; (c) contains a the definition of “public official” that is more limited than set forth in the Convention; (d) does not explicitly prohibit affirmative defences to the crime of torture; and (e) does not explicitly prohibit the application of a statute of limitations. The Committee appreciates the delegation’s reassurance that the draft can still be revised. This shortcomings cited above seriously hamper the implementation of the Convention by preventing and prosecuting torture in Thailand. The Committee notes the State party’s commitment to revise its Penal Code and Criminal Procedure Code, including the draft amendment, to define torture and include offences of torture in line with Articles 1 and 4 of the Convention. (arts. 1 and 4) Recalling the Committee’s General Comment no. 2 (2007), the Committee urges the State party to revise the legislation without delay: (a) To adopt a definition of torture that covers all the elements contained in article 1 of the Convention. (b) To include torture as a separate and specific crime in its legislation and ensure that penalties for torture are commensurate with the gravity of this crime, as required by article 4, paragraph 2, of the Convention; (c) To ensure that acts amounting to torture are not subject to any statute of limitations. para. 9. Ibid., para. 12. Ibid.: Fundamental legal safeguards 13. The Committee is seriously concerned that in practice all arrested and detained persons are not provided with all fundamental legal safeguards from the very outset of their deprivation of liberty. Such legal safeguards include, inter alia, maintaining an

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official register of detainees, the right of detainees to be informed of their rights, the right promptly to receive independent legal assistance, independent medical assistance, and to contact relatives, the need to establish impartial mechanisms for inspecting and visiting places of detention and confinement, and the availability to detainees and persons at risk of torture and ill-treatment of judicial and other remedies that will allow them to have their complaints promptly and impartially examined, to defend their rights, and to challenge the legality of their detention or ill-treatment. The Committee is further concerned that information requested on monitoring of safeguards was not provided, including information on the success of habeas corpus petitions. (arts. 2 and 16) The State party should take effective measures to ensure, in law and in practice, that all detainees are afforded all fundamental legal safeguards from the very outset of their detention, including the rights to have prompt access to an independent lawyer and an independent medical doctor, to notify a relative, to be informed of their rights at the time of detention, including about the charges laid against them, to be registered at the place of detention, and to appear before a judge within a time limit in accordance with international standards. The State party should also take the necessary measures to provide an effective free legal aid system. The State party should put measures in place to monitor the practice of all law enforcement and security officials to ensure that these safeguards are provided in practice as well as in law, and should take disciplinary or other measures against the officials responsible in cases where these safeguards are not provided to persons deprived of their liberty. para. 13. 37 Ibid., para. 14. 38 Ibid.: Impunity. 15. While noting the State party’s position that current Thai laws are adequate for punishing public officers who commit acts of torture, the Committee remains deeply concerned at the climate of de facto impunity for acts of torture prevalent in the State party in view of: (arts. 2, 4, 12 and 13) (a) The lack of prompt and impartial investigation of allegations of torture and illtreatment committed by law enforcement personnel. When torture allegations are investigated, the agency of the accused usually conducts the investigation and charges are often dismissed; (b) Delays in investigation of cases of torture; (c) The discrepancies between the numerous allegations of torture and ill-treatment by State officers and the very low number of the complaints brought to the authorities, which might indicate a lack of confidence in the police and judicial authorities and a lack of awareness by victims of their rights; and (d) The almost total absence of criminal sanctions against responsible officers, public prosecutors and, on occasion, judges disregard defendants’ claims that they have been tortured or classify the acts in question as constituting less serious offences. In view of widespread impunity, as a matter of urgency, the State party should: (a) Publicly condemn practices of torture, accompanied by a clear warning that anyone committing such acts, or otherwise complicit, acquiescent or participating in torture will be subject to criminal prosecution and upon conviction, appropriate penalties;

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chapter 6 (b) Take all necessary measures to ensure that all allegations of torture or ill-treatment are promptly, thoroughly and impartially investigated by a fully independent civilian body, perpetrators are duly prosecuted and, if found guilty, convicted with penalties that are commensurate with the grave nature of their crimes; (c) Suspend officers during the investigation of allegations of torture and ill-treatment; (d) Ensure that military personnel are tried in a civilian court for acts of torture and similar offences; (e) Establish an independent complaints system for all persons deprived of their liberty. para. 15. Ibid.: Gender-based violence 16. While welcoming the State party’s efforts to combat violence against women, in particular by criminalising domestic violence under Section  4 of the 2007 Domestic Violence Victim Protection Act, the Committee remains concerned about: (arts. 2, 14 and 16). (a) The high prevalence of gender-based violence, in particular sexual and domestic violence in Thailand; (b) The low level of prosecution for sexual and domestic violence, mainly due to the obstacles in the legal framework and the unresponsive attitude of the police and the judiciary towards such violence. The Committee is also concerned that, as a “compoundable” offence, a victim must lodge a complaint in order to prosecute crimes under Section 4 of the 2007 Domestic Violence Victim Protection Act and that the settlement of cases of domestic violence is prioritized over victims’ wellbeing and safety under Section  15 of the same Act. As a result, the Committee regrets that domestic violence is treated as a private matter rather than a serious public criminal offence; (c) Discriminatory rules of evidence in legal procedures of rape cases, which result in re-victimization and stigmatization of victims as well as lack of prosecution. The relevant legislation fails to regulate the admissibility of evidence; (d) Barriers in accessing legal protection and redress for the vulnerable groups, including Malay Muslim women in the Southern Border Provinces. The State party should further strengthen its efforts to address all forms of gender-based violence and abuse, in particular sexual and domestic violence, through legislative, judicial, administrative and other measures, including policy and social measures, in particular, by: (a) Revising relevant provisions of the Penal Code, the Criminal Procedure Code and the Domestic Violence Victim Protection Act with a view to facilitate complaints by victims, inform them about recourse available, and strengthen the systems of legal assistance and psycho-social protection for victims of domestic violence; (b) Promptly, effectively and impartially investigating all allegations of sexual and domestic violence with a view to prosecuting those responsible. The State party should remove obstacles to prosecute perpetrators of domestic violence and ensure that police officers refusing to register such complaints are appropriately disciplined. para. 16.

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Ibid.: Trafficking 17. While noting the efforts made by the State party to prevent and combat trafficking in persons, including adoption of the Human Trafficking Prevention and Suppression Act in 2008, the Committee is concerned at numerous reports of trafficking in persons for the purpose of sexual exploitation or forced labour. The Committee shares the concerns raised by the Special Rapporteur on trafficking in persons with regards to such issues as the lack of capacity and willingness of law enforcement authorities properly to identify trafficked persons, the arrest, detention and summary deportation of trafficked persons, the lack of adequate support for the recovery of trafficked persons in shelters, and the low rate of prosecution and delays in prosecuting trafficking cases. (arts. 2, 12, 13 and 16) The State party should intensify its efforts to prevent and combat trafficking in persons, by providing protection for victims, including shelters and psychosocial assistance and by conducting prompt, impartial investigation of trafficking with a view to prosecute and punish perpetrators with penalties appropriate to the nature of their crimes. The Committee encourages the State party to take all necessary measures to fully implement the recommendations contained in the mission report of the Special rapporteur on trafficking in persons. para. 17. Ibid.: 18. The Committee is concerned at numerous and consistent allegations of serious acts of reprisals and threats against human rights defenders, journalists, community leaders and their relatives, including verbal and physical attacks, enforced disappearances and extrajudicial killings, as well as by the lack of information provided on any investigations into such allegations. (arts. 2, 12, 14 and 16) The State party should take all the necessary measures to (a) immediately halt against harassment and attacks against human rights defenders, journalists and community leaders, and (b) systematically investigate all reported instances of intimidation, harassment and attacks with a view to prosecuting and punishing perpetrators and guarantee effective remedies to victims and their families. In this regard, the Committee recommends the Thai authorities to provide the family of Mr. Somchai Neelaphaijit with full reparation and take effective measures aimed at the cessation of continuing violations, in particular by guaranteeing the right to truth (CAT/C/GC/3, para. 16). para. 18. Ibid.: Witness and victim protection 19. While noting that the 2003 Witnesses Protection Act provides general or special protection measures for witnesses in criminal cases through the Department of Rights and Liberties and the Department of Special Investigation under the Ministry of Justice, the Committee remains concerned at: (arts. 2, 11, 12, 13 and 15). (a) Numerous and consistent cases of intimidation and attacks of witnesses to and victims of human rights violations. The Committee expresses its serious concern at the case of disappearance of Abdullah Abukari while under the protection of the Department of Special Investigation. Allegedly, he was a witness in the case of

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the enforced disappearance and murder of Somchai Neelapaijit and was tortured by police. (b) The absence of an effective mechanism and independent protection agency to ensure the protection of and assistance to witnesses and victims of torture and illtreatment. In addition to the concerns raised by the State party about loopholes in the provision of protection to petitioners in torture cases under the current Act (CAT/C/THA/1, para. 144), other allegations before the Committee question the fairness on the side of agencies in charge of witness protection, of which the majority of the staff are former police officers. (c) The lack of guidance and training for officers assigned to witness protection; (d) The absence of protection for defendants under the current Act; (e) The cases of complainants and witnesses in torture cases who later face charges of criminal defamation. The State party should revise its legislation and practices to ensure that witnesses and victims of human rights violations, including of torture and enforced disappearances, and the members of their families are effectively protected and assisted, in particular by: (a) Amending the Witness Protection Act to cover any proceeding, including civil and administrative proceedings, and to expand the category of persons that can receive protection; (b) Ensuring that perpetrators do not influence protection mechanisms and that they are held accountable; (c) Taking steps to inform the public of the Witness Protection Act and to allow witnesses in torture cases to invoke protective services; (d) Abolishing criminal defamation or providing protection for complainants and witnesses in torture cases from criminal defamation. para. 19. 43 Ibid.: Non-refoulement 20. While welcoming the State party’s continued commitment in hosting refugees in need of international protection on its territory, the Committee is concerned at reports of refoulement of asylum-seekers, as well as the absence of a national legal framework regulating expulsion, refoulement and extradition consistent with the requirements of article 3 of the Convention. Moreover, noting the information about the State party’s effort to provide humanitarian assistance to Rohingya refugees coming to the party, the Committee expresses concern at reports of some members of the group being turned back to sea. It also regrets the lack of information provided by the State party on the number of cases of refoulement, extradition and expulsion carried out and on the number of instances and type of cases in which it has offered and/or accepted diplomatic assurances or guarantees. (art. 3) The Committee recommends that the State party adopt appropriate legislation and procedures to comply with the principle of non-refoulement and to protect refugees and asylum seekers, in line with Article 3 of the Convention, in particular by: (a) Amending the Immigration Act and establishing a national asylum-system to provide the legal framework required to address the situation of refugees and asylumseekers. Also, the State party should take the necessary measures, in cooperation

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with the United Nations High Commissioner for Refugees (unhcr), to review its refugee status determination procedures; (b) Providing protection and rehabilitation support to victims rescued from human smugglers’ camps in the South of Thailand, and defining the temporary protection regime and related rights granted to Rohingya refugees and stateless persons, including protection from refoulement; (c) Acceding to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. para. 20. Ibid.: Immigration detention 21. The Committee is concerned at the use of lengthy, and in some cases, indefinite detention for asylum seekers and migrants in immigration detention centres…who enter the State party undocumented as well as by the lack of independent and systematic review of such detention decision and the restrictive use of alternatives to detention for asylum seekers. (arts. 3, 11 and 16) The State party should review detention policy with regard to asylum-seekers and give priority to alternative forms of punishment. It should end indefinite detention for asylum seekers and migrants and to guarantee them access to independent, qualified and free legal advice and representation, in order to ensure that persons in need of international protection are duly recognized and refoulement is prevented. Conditions of detention 22. While acknowledging that the State party has taken a number of measures to improve conditions in detention centres, including the allocation of additional resources to improve the situation of the immigration detention facilities in Songklha province, the Committee remains seriously concerned at the extremely high levels of overcrowding and harsh conditions, prevailing in detention facilities, including immigration detention centres (idcs). These include insufficient ventilation and lighting, poor sanitation and hygiene facilities and inadequate access to health care. The Committee expresses its concern at reports that the lack of medical care contributed to the spreading of diseases and deaths in custody, as in the cases of Rohingya and the Lao Hmong in idcs, both raised by the Special Rapporteur on Torture and the Special Rapporteur on Right to Health. Reports before the Committee indicate continuing incidents of violence in detention, including sexual violence, by prison guards or other prisoners with the acquiescence of the authorities. The Committee also regrets the lack of information about the so-called “white prison” policy, which is alleged to result in further restrictions on the rights and freedom of detainees. (arts. 11 and 16) The State party should strengthen its efforts to improve prison conditions to end any cruel, inhumane, or degrading treatment or punishment, in particular by: (a) Taking all the necessary measures to remedy the high rate of prison overcrowding, in particular by instituting alternatives to custodial sentences in accordance with the un Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules) and the un Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (Bangkok Rules); (b) Ensuring basic needs of persons deprived of their liberty with regard to sanitation, medical care, food and water. The State party should consider transferring

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chapter 6 responsibility for health issues in prisons from the Department of Corrections to the Ministry of Health; (c) Taking measures to prevent violence in prison and to investigate all such incidents so the suspected perpetrators may be brought to trial and victims may be protected. paras. 21–22. Ibid.: The use of shackling and solitary confinement was dealt with as follows: 23. While noting that the State party has reviewed and reduced the use of shackles in detention facilities, the Committee expresses concern at (a) the continued use of instruments of restraint, such as shackling, as disciplinary measures, and (b) the lack of adequate safeguards and monitoring mechanisms on the use of such restraining devices. The Committee also regrets the use of solitary confinement, often in unhygienic conditions and with physical neglect, up to three months as a mean of punishment. (art. 16) The State party should ensure that use of restraints is avoided or applied under strict medical supervision, and any such act is duly recorded. In particular, the State party should end the use of permanent shackling of death row prisoners, the use of shackling as a punishment and prolonged solitary confinement. Furthermore, the use of solitary confinement should be limited as a measure of last report, for as short a time as possible under strict supervision and with a possibility of judicial review. para. 23. Ibid.: Monitoring and inspection of places of deprivation of liberty 24. The Committee notes that visits to detention facilities can be undertaken by all agencies, including non-governmental and international organisation, upon request and with prior permission. It further notes the delegation’s statement that the State party hopes to become a party to the Optional Protocol to the Convention by 2015. Nonetheless, the Committee is concerned at the lack of systematic, effective and independent monitoring and inspection of all places of detention. (arts. 2, 11 and 12) The State party should: (a) Ensure the effective monitoring and inspection of all places of detention through regular and unannounced visits by independent national and international monitors, including non-governmental organisations, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment; (b) Make the recommendations of monitors public and follow up on the outcome of such systematic monitoring; (c) Collect the information on the place, time and periodicity of visits, including unannounced visits, to places of deprivation of liberty and on the findings and the follow-up on the outcome of such visits; (d) Ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the establishment of a national preventive mechanism. para. 24. Ibid.: 25. The Committee notes with interest that the National Human Rights Commission of Thailand (nhrct) has broad competence to receive and investigate complaints of

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human rights violations, undertake monitoring of places of detention, examine laws which contradict human rights principles and to subsequently submit those cases to the court for deliberation and ruling. The Committee is nonetheless concerned at reports that the authorities have not followed up on the findings and recommendations made by the nhrct and about reports that persons deprived of their liberty do not raise complaints with the nhrct when they take visits to detention places reportedly out of fear of retaliation by prison officials. (art. 2) The State party should ensure that nhrct effectively executes its mandate in accordance with the Paris Principles (General Assembly resolution 48/134, annex), in particular by strengthening the roles of the nhrct in carrying out unannounced visits to detention facilities during which they are able to take confidential statements from detainees, by implementing the recommendations made by the nhrct, and by guaranteeing independence and pluralism of its composition. In that regard, the Committee recommends the State party consider reviving the previous selection procedure of the nhrct with a view to increase the number of Commissioners and to allow for the participation of representatives of human rights non-governmental organizations. para. 25. Ibid., para. 26. Ibid. Redress, including compensation and rehabilitation 27. While noting the content of Section 420 of the Civil and Commercial Code and the Compensation and Expenses for Injured Persons and the Accused Act to claim redress for human rights violations, the Committee is concerned about (a) the absence of systematic state provision of rehabilitation and redress for the physical and psychological consequences of torture, including appropriate medical and psychological care, (b) the obstacles for victims of torture and ill-treatment to receive redress, including adequate compensation and rehabilitation, and (c) the insufficient information provided by the State party on redress and compensation measures, including means of rehabilitation, ordered by the courts or other State bodies and actually provided to victims of torture, or their families, since the entry into force of the Convention for the State party. (art. 14) The State party should take the necessary steps to ensure that victims of torture and ill-treatment receive redress, including fair and adequate compensation and the means for as full rehabilitation as possible. The Committee draws the State party’s attention to its general comment No. 3 (2012), on the implementation of article 14 by State parties (CAT/C/GC/3), in which it elaborates upon the nature and scope of State parties’ obligations to provide full redress to victims of torture. para. 27. It is open to debate whether the draft law should merge cat and ced (which it does). In an earlier version, there was no reference to non-refoulement. This is no longer the case. Obviously much depends on leadership and political will. If impunity is age old, who will break that cycle? Sanctions against officials might be internal (e.g. reprimand, suspension or move to another post) or external e.g. prosecution in the courts. The latter is very rare and is part of the problem of impunity.

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chapter 6 Thai Criminal Procedure Code on illegally obtained evidence: Section 226/1 of Thai Criminal Procedure Code. www.apt.ch/content/countries/thailand.pd (accessed 24 January 2016). cat Committee comments on the domestic violence law, supra note 4. The latest news concerning the Somchai Neelapaichit case is that no officials have been found responsible for his disappearance and the implied linkage with the torture issue. ICJ.org [Internet Homepage], Thailand: effective investigation of enforced disappearance of Somchai Neelapaijit needed after Supreme Court ruling, http://www.icj.org/ thailand-effective-investigation-of-enforced-disappearance-of-somchai-neelapaijit -needed-after-supreme-court-ruling/ (accessed 4 November 2015). 1999 Declaration of the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms; “Declaration on Human Rights Defenders,” www.ohchr.org. For example, the 1955 un Standard Minimum Rules on Treatment of Prisoners. https:// www.unodc.org/…/criminal…/UN_Standard_Minimum_Rules_for_the_Treatment_of_ Prisoners.pdf (accessed 24 January 2016). For the Optional Protocol to the cat, see: www.ohchr.org And for a manual thereon: https://www.iidh.ed.cr/IIDH/media/2054/protocoloingles -2006.pdf (accessed 24 January 2016). Supra note 52. See Concluding Observations, supra note 4. Particularly Article 3 of cat and non-refoulement. Outcry over Uighurs’ deportation 2015. Bangkokpost.com [Internet Homepage], eu and un condemn Uighur deportation, http://www.bangkokpost.com/archive/uighur -­deportation-outrage-grows/619960, 11 July 2015 (accessed 4 November 2015).

chapter 7

The International Covenant on Economic, Social and Cultural Rights(icescr) and Thailand Introduction Well before the beginning of 2015, another treaty had been ratified by Thailand: the International Covenant on Economic, Social and Cultural Rights (­ icescr).1 This treaty was finalized in 1966. It is now complemented by a Protocol which opens the door for individual communications in the absence of national remedies.2 The Covenant looks at these rights through the lens of progressive realization, bearing in mind the national resources available. There are 15 substantive articles (see Table 15), the rest being concerned with the monitoring Committee and related procedures as below. Table 15

icescr: Summary of contents.

Article 1: self determination Article 2: progressive realization, to the maximum extent of available resources Article 3: gender equality Article 4: limitations permissible in accordance with law and democratic society Article 5: no justification of destruction of rights Article 6: right to work Article 7: just and favourable conditions of work Article 8: right to form trade unions Article 9: right to social security Article 10: protection of the family and children Article 11: right to adequate standard of living Article 12: right to highest attainable standard of health Article 13: right to education Article 14: free and compulsory primary education Article 15: right to take part in cultural life Source: Author’s own table derived from OHCHR, The Core International Human Rights Treaties. © faculty of law, chulalongkorn university, 2017 | doi 10.1163/9789004326675_008

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The issue of self-determination espoused by Article 1 is similar to that of Article 1 of the other Covenant.3 Yet, in official circles, there lingers the issue of whether it might give rise to secessionism or separatism.4 Article 2 enables the Covenant to be implemented step by step “to the maximum of (the State’s) available resources, with a view to achieving progressively the full realization of the rights” under the Covenant, while Article 3 posits equality between men and women. Article 4 provides for possible limitations on the enjoyment of the rights “in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society,” while Article 5 advocates against any act aimed at destroying the rights. Article 6 posits the right to work, with Article 7 guarantees “just and favourable conditions of work,” such as fair and equal wages and a decent living. Article 8 advocates the right to form trade unions and to strike, while Article 9 calls for social security. Article 10 recognises protection for the family, mothers and children, while Article 11 advocates an adequate standard of living. Article 12 guarantees the right to the highest attainable standard of health, with Article 13 on the right to education aimed at free and compulsory primary education. Meanwhile, Article 14 promotes compulsory education in the other territories under the jurisdiction of a member State, and Article 15 concerns the right to take part in cultural life and the benefits of scientific progress. Thailand became a party to the treaty on 5 September 1999. The country’s initial report was considered by the monitoring Committee in the middle of 2015.5 The initial and second reports (merged) were submitted together and were complemented by a core document providing general information.6 The preparation of the report was subjected to a very long delay due to administrative matters. This invites reflection on the most appropriate state organ which should be in charge of the reporting and monitoring process under this Covenant. An interpretative declaration was also entered on ratification in relation to Article 1 as noted by the report: The Covenant has entered into force for Thailand since 5 December 1999; upon accession Thailand made an interpretative declaration on Article 1, Paragraph 1 on the right of self-determination, in line with its interpretative declaration on Article 1, Paragraph 1 of the International Covenant on Civil and Political Rights, in which the right of self-determination shall not be interpreted to include separation of territory or political unity of a sovereign state.7

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Reporting Process

Implementation In regard to the implementation of the Covenant in Thailand, the initial report referred to above replied to each article of the Covenant sequentially and individually. The contents can be excerpted as follows: 1. 2. 3.



The Constitution of 2007 reflected the right to self-determination under Article 1.8 Implementation of Article 2 was found in various laws and policies.9 The substance of Article 3 on non-discrimination appeared in a variety of Thai laws: 12. Article 30 of the Present Constitution ensures equality between men and women in receiving equal legal protection, including appropriate treatment in cases of sexual abuse, protection from domestic violence in the family, protection for female labour workers, equal opportunity for women to participate in the formulation of public policies, etc. 13. Thailand has improved and amended several laws concerning economic, social and cultural rights in order to promote equality between men and women. For instance: • Civil and Commercial Code Amendment Act (No.16), B.E. 2550 (2007) improves on provisions relating to a demand for compensation by fiancées, and reasons for divorce lawsuits, e.g. adultery to provide equality between men and women. • Name of Person Act, B.E. 2505 (1962) amended by Name of Person Act, B.E. 2547 (2004) allows a woman to use her maiden name or her husband’s family name after marriage. • Form of Address for Women Act B.E. 2551 (2008) allows a married or divorced woman to choose at free will whether to use either the title “Mrs.” or “Miss,” effective from 5 June 2008, in accordance with the right granted to her by the Name of Person Act, B.E. 2547 (2004) to enjoy free choice of using either her own family name or her husband’s family name. • Civil Service Regulations Act, B.E. 2551 (2008), Article 83(8) provides that any civil servant shall not commit any act of sexual abuse or sexual harassment as stipulated by the law. The Office of the Civil Service Commission issued regulation on the acts of Sexual Abuse or Sexual Harassment B.E. 2553 (2010), identifying behavioral traits considered as acts of sexual abuse or sexual harassment, which aims at ensuring

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that civil servants receive legal protection and appropriate treatment by their co-workers in government agencies.”10 4. There was no comment in the initial report on Articles 4 and 5.11 5. On Article 6, the report indicated that the right to employment was guaranteed in the Constitution.12 6. Decent work conditions under Article 7 were responded to, especially per the Labour Protection Act 1998, including on protection of young workers, women, equal pay and occupational health.13 7. The right to form trade unions was implemented through the Thai labour relations law, and the country was considering accession to International Labour Organisation (ilo) Conventions on the subject.14 8. The issue of social security under Article 9 was responded to, principally by means of the social security law targeted to workers/employees.15 9. On Article 10, protection of families and children was found through a variety of laws and other measures. These were reported also under the cedaw and crc. With regard to the issue of violence, there was an action plan on anti-violence.16 10. There was also much interest in protecting the ageing population and some social welfare measures, such as a monthly pension, were available to help them.17 11. Anti-poverty measures under Article 11 were guided by the national economic and social development plan and government agenda, with around eight and a half percent of the population classified as poor in 2007: 93. In consideration of national poverty status by using ‘poverty line’ method, calculating from individual cost or expenditure in acquiring food goods and services which are basic need for living standard, the report of the Office of the National Economic and Social Development Board shows that Thailand’s poverty status has continuously declined through time, there are only some slight increases only during 1998–2000, which was the period of the economic crisis in Thailand. In 1988, the poverty line was at usd 20.144 /person/month, with 42.21% as the proportion of poor people, calculated from the number of population who pay expenses on consumption lower than the poverty line, divided by the total number of population and multiplied by 100. The poverty status numbers then steadily decreased, with the poverty line in 1996 at usd 30.74/ person/month, while the proportion of poor people is at 14.75%. But in 1998 when Thailand was hit by an economic crisis, the poverty line went up to usd 36.45 /person/month, with a slight increase in the proportion

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13. 14.

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of poor people to 17.46%, then to 20.98% in 2000. But after that, the status of poverty in Thailand has continuously decreased, due to results of the national development and effort to tackle the poverty problem. In 2007, the proportion of poor people went down to 8.48%, and out of Thailand’s total population of 63.9 million persons, it is found that there are 5.4 million poor people, with the poverty line at usd 46.54 /person/month. The majority of the poor are still in the northeast, numbering 2.8 million persons or 52.20% of the total number of poor people nationwide.18 Much progress had been made on universal health care under Article 12, especially for Thai nationals through the national health security law (2002). The subsequent national health law also emphasized preventive care: 113. The right to health is guaranteed under the present Constitution (2007) which ensures that every person shall have equal rights to receive standard health care services, and the impoverished shall have the right to receive medical treatment from State health facilities free-of-charge. (Section 52) The State has a duty to arrange and promote public health so that the people can receive standard and effective services extensively. (Section 82) 114. The National Health Security Act B.E. 2545 (2002) provides for every Thai person, especially impoverished people, to receive health services, to receive medical treatment, rehabilitation, health promotion and disease prevention, which are essentials for health and standard quality living equally for everyone. In the fiscal year 2009, the government set a budget of usd 71.03/person/year in support of expenses of the eligible persons in the Universal Health Coverage System, which covers a total population of 47.03 million people. And in the fiscal year 2010, the budget was increased to usd 77.46/person/year, covering a total population of 47.24 million people….19 On the issue of health care for migrant workers, the national response was to offer coverage to registered workers. Some medical benefits were also available to undocumented workers.20 On Article 13 and 14, the right to education was responded to by targeting the provision of basic education for at least 12 years.21 The challenge was to attain other levels of education beyond primary, as well as pre-school. On Article 15, cultural diversity was recognized in the country with a v­ariety of programmes, such as the possibility of mother tongue education.22

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List of Issues and Replies There was a long gap between finalization of the initial report by Thailand and consideration by the Committee on Economic, Social and Cultural Rights. In reality, the report was overtaken by various events. Significantly, in 2014 the country witnessed a coup and the subsequent military installed government issued many “orders” having impact on people’s rights and livelihood. The 2007 Constitution was superseded by the interim Constitution of 2014. Two of the most salient Orders were Orders 64 and 66 on measures to counter encroachment on national forests and land, while attenuating negative impact on communities which had been in those areas before June 2014. Communities living in forests affected by these Orders contested them. Various concerns were raised by the Committee at the beginning of 2015 with a list of issues sent to the country prior to the oral dialogue.23 The questions in the list ranged from the right to land and natural resources to non-discrimination, from conditions of work to trade union rights, from poverty to health, education and culture. Subsequently in 2015, the country replied to the list of issues in written form, before proceeding to Geneva for the oral dialogue in June. Highlights of the written reply included the following: 1.

2. 3. 4.

On the general relationship between national and international law, the country’s approach reiterated the dualistic nature of the system, thus needing transformation of international law into local law if the former was to be invoked in local courts. One innovation in Thai legal development was the concept of community rights espoused by the Constitution. In addition to the interim Constitution 2014, there was also a new Human Rights Action Plan to guide measures in the country. The environment was a key testing ground for the competition between rights and projects impacting on resources, as seen by a key case before the administrative court where environmental concerns prevailed over business interests (Map Ta Phut case, where the administrative court imposed conditions on the business sector to mitigate impact on the environment and people’s health in the Eastern Seaboard area).24 On Article 1 of the Covenant and the link with land and resources, the reply from Thailand recognized the difficult relationship between communities and the utilization of lands and natural resources.25 On Article 2, there was a close relationship between resources and anticorruption measures, with the country now a full party to the un’s Convention against Corruption.26 Pursuant to Article 2, there was a new law prohibiting gender based ­discrimination, but there was not yet a specific law prohibiting racial

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d­ iscrimination. The country was also a haven for asylum seekers from other countries, although not yet a party to the 1951 Refugee Convention and its 1967 Protocol.27 5. On Article 3’s link with equality between men and women, the proportion of women in executive positions was still low. An important issue was action to overcome violence against women, including the passage of a domestic violence law, provision of shelters for victims, and state planning on the issue.28 6. On the issues of labour force, ethnicity, disability, sex age, and urban rural differentiation raised by Article 6–15, the report indicated progress on various matters, with a low unemployment rate, career development for hill tribes, almost equal unemployment rate for men and women, new legislation to counter disability-related discrimination, and more employment opportunities for people in Thailand’s South.29 7. With regard to Article 7’s right to just and favourable condition of work, the reply singled out, as an issue linked with migrant workers, nationality verification and registration to regularize the status of such workers.30 8. On trade union rights per Article 8, there were three major concerns. First, migrant workers were not allowed to form a trade union. Second, civil servants were waiting for a law to allow them to set up unions. Third, the law on state enterprises still did not allow state enterprises to carry out a strike.31 It should be added that after the reply to the list of issues was sent to the Committee, in 2015, the country also passed a new law on public assemblies obliging organizers to notify the police beforehand, and prohibiting certain kinds of assembly, e.g. near various public spaces (such as Government house and the airport) as well as forbidding protest marches at night time.32 9. Per the right to social security under Article 9, the system available for Thais was quite comprehensive. This was based on the national social security legislation and workman’s compensation Act; the system was obligatory for workers in the formal sector, with contributions from workers, employers and the State. Workers from the informal economy could also join on a voluntary basis. The target was to meet a social protection floor for all workers. Measures were being implemented to enable registered/ regularized migrant workers to access such social security.33 10. On the issue of protection of families, mothers and children per Article 10, a notable development was the country’s ratification of ilo Convention No.182 to eliminate the worst forms of child labour, while there was also cooperation with the ngo sector to counter child sexual e­ xploitation. Lists of hazardous work had been finalized as part of the prohibition.

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Measures were being implemented to arrest persons involved with human trafficking, together with rescue, shelter, hotlines and compensation for the victims.34 11. In regard to Article 11 and the issue of standard of living/poverty, in 2013 there were just over 7 million persons or 11 percent of the population classified as living in poverty. Measures to stop deforestation followed various Orders as above.35 12. In regard to the health issue under Article 12, the country had made great strides in offering universal health care for Thais, despite challenges such as overcrowding and a strain on the funds. Financial provision was also being offered to hospitals by border areas to service persons with unregistered status (such as irregular migrant workers).36 13. With respect to education under Article 13 and 14, there was high budgetary commitment from the State, and the gender parity in primary and secondary education had been achieved. While the country was nearing universal primary education, the target had yet to be fulfilled.37 14. With regard to cultural rights under Article 15, the reply noted that the rights of ethnic groups were responded to, while the application of the lese majeste law under Criminal Code Article 112 was to protect the monarchy.38 Dialogue and Recommendations The dialogue with the Committee took place in Geneva in June 2015. There were a number of detailed reports submitted by ngos.39 After an intensive one and half days discussions and questions/answers, the Committee issued these recommendations (concluding observations): 1.

It welcomed some new laws and policies, including: Gender Equality Act, in 2015; Revised Labour Ministerial Regulation to Protect Labour in the Sea Fishing Industry, in 2014; Anti-Trafficking in Persons Act, in 2008; Cabinet Resolution on Education for Unregistered Persons, in 2005; Third National Human Rights Plan (2014–2018); National Plan and Policy on the Prevention, Suppression and Combating of Domestic and Transnational Trafficking in Children and Women 2012–2016; Eleventh National Economic and Social Development Plan (2012–2016); Strategic Plan for the Improvement of Education in the Southern Border Provinces (2012–2016); National Policy and Plan to Eliminate the Worst Forms of Child Labour for 2009–2014; and Comprehensive Strategy on Resolving the Problems of Irregular Migrants 2012.40

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2. 3. 4.

7. 8. 9. 10. 11. 12. 13. 14.

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It called for direct applicability of the Covenant’s provisions in the domestic setting.41 It advocated the need for strengthening of the National Human Rights Commission.42 It recommended more effective measures against corruption.43 It advised that the rights of indigenous peoples should be based on self-identification.44 It was very concerned with various military orders (particularly Orders 64 and 66) on protection of forests which had resulted in forced eviction of communities and underlined the need for free, prior and informed consent. It reiterated that evictions should be a matter of last resort and they are subject to compensation.45 There was a need for more protection of human rights defenders and to counter impunity.46 There was a call to ensure that the businesses would abide by the un human rights framework.47 The country needed comprehensive anti-discrimination legislation.48 There was a need to tackle statelessness.49 There was a call for a legal framework on refugee protection (at the national level) and respect for non-refoulement.50 The exceptions to the new gender equality law – the grounds of religion and national security- were seen as affecting women’s rights negatively and needed to be overcome.51 Protection of workers, including migrant workers, homeworkers and workers in the informal economy, needed to be improved and there was a call to strengthen the minimum wage.52 It was essential to guarantee the right to form trade unions for members of public organisations and teachers without discrimination – to cover non-­nationals also. The right to strike needed to be extended to state enterprises.53 Child protection against sexual exploitation needed to be improved, including through more effective law enforcement and measures to help people in poverty.54 More effective measures were required to tackle human trafficking. This included more effective identification of victims and law enforcement to protect them.55 The country needed to provide adequate housing and protect slum dwellers from forced evictions, as well as to ensure basic services such as water and sanitation.56

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18. The living conditions in detention centres needed to be improved, especially with indications that asylum seekers were suffering from poor health care and malnutrition in these facilities.57 19. The much lauded universal health care scheme should be sustained and access marginalised populations.58 20. Sexual and reproductive health needed strengthening to prevent early pregnancies, while access of drug users to health care should be improved.59 21. Access to education had to ensure reduction of drop out from school, while accessing distant communities.60 22. The violent situation in the South threatened the safety of teachers and health personnel, thus requiring more measures to protect their protection.61 23. The adverse effect of the interpretation of the lese majeste law needed to be addressed.62 24. The Committee then also invited the country to accede to the Optional Protocol to open the door to communications by individuals to the Committee where there were no local remedies for discrepancies.63

Key Challenges

The dialogue with the Committee and the ensuing recommendations provide the most up to date analysis of Thailand’s human rights record through the eyes of an international committee. In general, in relation to implementation of rights and follow up of the recommendations from the Committee, it can be said that the country’s record on economic, social and cultural rights is good on several fronts, e.g. anti-poverty measures and health care. However, there is serious competition for resources, particularly the issue of land, forests and communities, and the political aspects of economic, social and cultural rights are problematic, as seen in the extensive discussions between the Committee and the Thai country team in 2015. Other issues posing key challenges needing further follow-up, are identified below. Non-discrimination and Gender On this front, the situation has improved normatively with the introduction of the new gender equality law which prohibits discrimination not only in relation to sex/gender but also in relation to gender expression which is taken to mean sexual orientation and gender identity.64 However, there is ambivalence concerning two limitations allowed by that law: religion and national security.

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Basically, the new law sets up channels to receive complaints of discrimination at the Ministry of Social Development and Human Security. Other channels include the Courts. Sanctions can be imposed on those who commit acts of discrimination, and there is a national committee to oversee the process, together with a national fund to help victims. It is hoped that if the new law is tested in the courts, the latter will follow international standards concerning non-discrimination and establish the parameters surrounding those limitations based on international law, e.g. the need to test the latter according the standards of legality, necessity, proportionality and legitimacy. The discussions with the Committee also covered the issue of discrimination against women and the question of violence. This interplays with the analysis provided in the earlier parts of this study, particularly the inadequacy of the law on domestic violence and related practice. At the more systemic level, the spread of human trafficking and smuggling also has a gender dimension in terms of victimization and the need for gender sensitive facilities and support, bearing in mind that the non-discrimination principle invites effective coverage also of non-Thai women and girls. Indivisibility of Rights A case in point is where political rights merge with cultural rights, as exemplified by the issue of freedom of expression and the limits imposed by the State in this regard in relation to the cultural context facing different groups in the country. The indivisibility of rights and freedoms is tested more prominently where the power structure is impugned by dissonant voices. The issue of the application of lese majeste law is raised consistently by the international community in this regard. This is further complicated by the use of various national security laws at the local level and currently section 44 of the interim Constitution, coupled with various orders from the uniformed authorities. Anti-poverty Measures against poverty have enabled the country to fulfil the targets set by the Millennium Development Goals.65 In a sense, fulfillment of human rights on this front has been positive. The next step will entail total elimination of poverty and the Sustainable Development Goals adopted by the world community in 2015 for the next 15 years will be a window of opportunity for this commitment. Another pressing concern is reduction of disparities which will need active measures to distribute wealth, resources and income. A law to impose inheritance tax was passed in 2015,66 but it was still difficult to impose a land tax which had been the subject of discussion for a long time.

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Health Care While the universal health care for Thais has been lauded, it needs to be sustained with adequate resourcing and quality assurance. From the angle of making it more universal to cover non-Thais, a challenge is how to respond realistically and sustainably to the health needs of non-nationals, particularly irregular migrant workers. This has been dealt with, to some extent, by enabling migrant workers (whatever the status) to buy a health insurance card. Provisions are also made in regard to treatment of hiv/aids and related medicine to cover all persons, irrespective of origin, with funds drawn from the Global Health Fund. Education The challenge facing educational access in the country is to move towards total coverage at the primary level, while opening the door to more access at other levels. Another factor needing emphasis is the need to raise the quality of education and to assist teachers to improve their potential. In the next phase, it will be important to not only ensure universal access to and completion of compulsory primary education for all (covering also non Thais) but also expand this to encompass pre-school, secondary and other forms of education. There is an intrinsic link with employment opportunities and the need to synchronise well with the labour market. Land, Resources, Shelter and the Environment This is a critical area, made more complicated by the instances of forced evictions of communities from lands/forests claimed by the State, as seen by the impact of the various Orders noted above. At times law enforcement, through the actions of the authorities in tacking encroachment, is ambivalent; there is the question of whether it abides by the international guidance that longstanding communities must only be moved/evicted where they do so with free, informed and prior consent. Particularly relevant to the Thai context is the Committee’s General Comment No.7 on adequate housing and on forced evictions, with the following important guidance: 15. Appropriate procedural protection and due process are essential aspects of all human rights but are especially pertinent in relation to a matter such as forced evictions which directly invokes a large number of the rights recognized in both the International Covenants on Human Rights. The Committee considers that the procedural protections which should be applied in relation to forced evictions include: (a) an opportunity for genuine consultation with those affected; (b) adequate and reasonable

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notice for all affected persons prior to the scheduled date of eviction; (c)  information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected; (d) especially where groups of people are involved, government officials or their representatives to be present during an eviction; (e) all persons carrying out the eviction to be properly identified; (f) evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise; (g) provision of legal remedies; and (h) provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts. 16. Evictions should not result in individuals being rendered homeless or vulnerable to the violation of other human rights. Where those affected are unable to provide for themselves, the State party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available.67 Labour Rights There are already many laws and measures in Thailand responding to international standards, to a lesser or greater extent, such as the Labour Protection Law and Labour Relations Law. These are also dealt with later in this book in regard the Convention on migrant workers. A key issue will be to enable coverage of the different groups – without discrimination. A particular concern is to enable migrant workers to join and form trade unions and to enable state enterprises to strike; currently the law is still restrictive. Ethnicity A number of issues interrelate with the various ethnic groups in the country, such as the hill tribes in various parts of Thailand and the Muslim population in Southern Thailand. Language, nationality, religion and participation are but some of the recurrent challenges. This is made more difficult by the ongoing violence in Southern Thailand and the need for reconciliation. It is also linked with the issue of how communities are able to participate in decision making and administration. The Southern issue is more complicated because of the long festering violence and the wait for a peaceful solution. Non-nationals and Migrant Workers While expatriates benefit from the extensive facilities available in the country, blue collar workers, especially migrant workers, are presented with key

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challenges ranging from regularization of status and how to guarantee labour rights. The general State policy obliges migrant workers to verify their ­nationality and register with the Thai labour authorities to get a work permit before undertaking work in Thailand. Those who are regularized have access to basic protections such as access to social security. A conundrum concerns unregistered/undocumented cases. Although in principle, the national labour protection law protects all groups without discrimination, in practice, undocumented workers are often in a limbo status/a legal vacuum in terms of protection. Access to health care poses a particular challenge to undocumented migrant workers or irregular cases, as the current universal health care coverage in the country encompasses Thais and documented/registered workers rather than undocumented workers. Crime and Trafficking The implementation of economic, social and cultural rights is tested very much by the situation of crime and corruption in the country. The situation has become more complicated in recent years because of cross border crime and the spread of human trafficking and smuggling. This intermingles with the different types of workers mentioned, especially undocumented migrant workers from neighbouring countries. The Committee’s recommendations invite more transparency of actions by the authorities and “quality” law enforcement which ultimately depend not only the formal law enforcers but also community participation and vigilance. This underlines the call for leadership, public mobilization and personal commitment as well as systemic guarantees and protection.

1 The Covenant has 31 Articles. Thailand is not a party to its Protocol concerning individual communications. See further: www.ohchr.org. 2 Protocol: www.ohchr.org. 3 See Article 1 and the parallel declaration/reservation under the iccpr (other chapter of this book). 4 This is linked with the situation in Southern Thailand, a regional where the majority are Muslims, and where there is continuing violence. 5 See Concluding Observations below re oral dialogue in June 2015. 6 Thailand’s Initial and Second Report, un Doc. E/C.12/THA/1-2 (October 2013). For core document, see: HRI/CORE/THA/2012(October 2012). 7 Ibid., para. 1. 8 Ibid., para. 8. 9 Ibid., paras. 10–11.

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Ibid., paras. 12–14; 14. Thailand places great importance on the Women’s Development Plan by incorporating it into the country’s National Economic and Social Development Plan, starting with setting the Guidelines for Women’s Development in the 3rd National Economic and Social Development Plan (1971–1976), which was later developed into the Women’s Development Plan in the 7th National Economic and Social Development Plan (1992– 1996), the 8th Plan (1997–2001), the 9th Plan (2002–2006), and the 10th Plan (2007– 2011). These efforts aim at advocating for the people in society to lead their lives on the basis of respect for human value and dignity, for equality between women and men, for positive attitudes which are conducive to the promotion of a male–female partnership role in the country’s development, for women to enjoy equal opportunities in development and in fully participating in social, cultural, economic, political and administrative matters, as well as for women to enjoy protection with regard to their health condition and security in life and to access services which meet their needs. para. 14. It is intriguing that in the report, there is limited discussion of the country’s perception of limitations imposed on rights, such as national security, from the angle of whether they comply with international law. Culturally, there is also a tendency in some circles to invoke “duties” as a key issue rather than “rights.” Supra note 10: 19. Thailand’s Present Constitution (2007) has provisions regarding the right to work, which states that a person shall enjoy the liberties to engage in an enterprise or an occupation and to undertake a fair and free competition (Section 43); and a person shall enjoy the right to work safety and welfare and to living security irrespective of whether he is employed or unemployed in accordance with the provisions of the law (Section 44); the State shall encourage and support an implementation of the sufficient economy philosophy (Section 83); the State shall encourage a free and fair economic system, implement fair distribution of incomes, extend the occasion to occupation of the public, promote and support the development of local wisdom and Thai wisdom, promote people of working age to obtain employment, protect child and woman labour, provide the system of labour relations and social security and ensure labours working at equal value to obtain wages, benefits and welfares upon fair and indiscriminate basis (Section 84). 20. The Ministry of Labour is the core agency with the mandate and responsibility to oversee the country’s labour affairs, employment, work security and conditions. The important law is the Recruitment and Job Seekers Protection Act, B.E. 2528 (1985), with two later amendments in 1994 and 2001. The Act significantly provides for the state to set up an employment office, i.e., Department of Employment, Ministry of Labour to provide public employment services with free of charge, and to monitor and regulate a domestic and overseas recruitment agencies in order to protect job-seekers from exploitation by business operators, to provide them with assistance, and to set a skill testing standard for a job-seeker who desires to work abroad. paras. 19–20. Ibid.: 34. The present Constitution’s (2007) provisions about the rights and liberties in occupation state that a person shall enjoy the liberties to engage in an enterprise or an

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chapter 7 occupation and to undertake fair and free competition. The restriction on such liberties shall not be imposed except by virtue of the law specifically enacted for maintaining the security of the State or economy of the country (Section 43); and a person has the right to security in respect of safety and welfare at work, including security of life both during the working life and upon leaving the state of employment (Section 44). 35. The Labour Protection Act B.E. 2541 (1998) and its later amendments are the laws which provide for the rights and duties between employers and employees in the private sector, namely employment of labour in general, employment of women, employment of young workers, wages, welfare, severance pay, occupational safety health and environment, etc. The laws set minimum standards and contain provisions on penalty and complaint procedures for employees in case of violations by employers, and authorize an official to take action in compliance with the law. 36. The Act on Labour Relations B.E. 2518 (1975) and amendments are the laws that set up the guidelines on mutual treatment between two parties, namely the employer and the employee in the private sector, in reaching agreement on matters regarding rights, duties and interests in working together. The laws specify procedures in filing demands, including means to resolve conflicts between the two parties to end quickly and to the highest satisfaction of both parties. This aims at enhancing peace and happiness in the industry which will lead to economic progress for the employer, the employee and the nation. 37. The Act on State Enterprise Labour Relations B.E. 2543 (2000) is the law enforced on state enterprises. It sets out relations between the employer and the employee, in the same way as the Act on Labour Relations of 1975. The law further contains provisions authorizing the State Enterprise Labour Relations Committee to set minimum standards on employment condition for state enterprise workers. The Committee then made the Announcement on Minimum Standards of Employment Condition in State Enterprises, providing for employees of state enterprises to enjoy the same employment condition as employees in the private sector under the Labour Protection Act of 1998. 38. The Working of Aliens Act B.E. 2551 (2008) provides that foreign workers who have passed physical examination at public hospitals and have submitted proof of registration as legal foreign workers will be eligible for receiving exactly the same labour protection and welfare as a Thai labourer, as provided for by the Labour Protection Act and the Social Insurance Act. paras. 34–38. Ibid.: Article 8 – Right to form and join a labour union 51. The present Constitution states that a person shall have freedom to assemble in an association, a union, a confederation, a cooperative, a farmers’ group, a private sector organization, a non-governmental organization, or other forms of assembly (Section 64 paragraph 1). Government officials and state officials shall have freedom to assemble in the same manner as other people, on condition that their work effectiveness and the continuity in providing public services must not be affected, according to the provision of the law (Section 64 paragraph 2). Limitation of such right is not

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permitted, except by the provision of the law for the following reasons; to protect the public interest as a whole, to maintain law and order, to uphold the people’s decent morality, or to prevent economic monopoly (Section 64 Clause 3). 52. Legally, even though Thailand has not ratified the International Labour Convention No. 87 on Freedom of Association and Protection of the Right to Organise and Convention No. 98 concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, but in practice, the Act on Labour Relations in Thailand does not neglect the main principles of the two conventions in any way; elaborating as follows: • The Labour Relations Act B.E. 2518 (1975) is a law which lays down operational guidelines on mutual treatment between employers and employees, for good understanding between the two parties, to enter into agreements on rights, duties and benefits of working together. The law specifies means to resolve conflicts or labour disputes promptly and to the best satisfaction of both parties, which will lead to peaceful and happy industries, and economic progress for the employers, employees and the country. • The State Enterprise Labour Relations Act B.E. 2543 (2000) sets out relations between state enterprise officials and the state, the formation of labour unions, as well as criteria and procedures in filing petitions/demands to the agency which has the duty to scrutinize and make rulings specifically, which is different from the Labour Relations Act that is applicable to only employers and employees in private organizations. This is to set scope for the management and the employees of state enterprises of their rights, duties and responsibilities in an appropriate manner and in compliance with the national policy on the development and promotion of economic and social stability and national security. • Moreover, in the public sector, the Act of Civil Servants Regulations B.E. 2551 (2008) provides every civil servant with freedom to assemble, on condition that such assembly must not affect the efficiency of the state administration and the continuity in providing public services, and does not have any political purpose. paras. 51–52. Ibid.: 59. Thailand has implemented the Social Security Scheme by setting up two funds, namely the Workmen’s Compensation Fund and the Social Security Fund. The Workmen’s Compensation Fund, regarded as the first step of Thailand’s social security, aims to provide security to employees for the contingencies of work-related injury or sickness. The Fund was set up for the first time in 1972 by the Notification of the Revolutionary Party No.103 dated 16 March 1972. Later, the Workmen’s Compensation Act was enacted in B.E. 2537 (1994) with the objective of providing protection to employees who sustain sickness, injury, invalidity, disappear or die from working for their employers. The employer has the duty to pay contribution to the Workmen’s Compensation Fund unilaterally at the rate 0.2%–1% of the total wages in a year (not more than 240,000 baht per person), depending on the risk classification of business. The basic rates of compensation payment are ranged between 0.2% and 1%, and the varying rates according to experience (not over 80% less, and not over 150% more than

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chapter 7 the main compensation rates). The benefits that employees are entitled to receive include medical fee, compensation (in case of absence from work, loss of organ, disability, disappearance or death), funeral grant, and vocational rehabilitation expense. Employees shall be protected and eligible for this security from the first day they are employed by their employers. 60. The Social Security Fund was established in accordance with the provision set forth in the Social Security Act b.e. 2533 (1990), which has entered into force since 2 September 1990, later amended by the Social Security Act (No. 2) b.e. 2537 (1994), and the Social Security Act (No.3) b.e. 2542 (1999). This law has the objectives of providing protection to the insured persons in case of non-work related injury, sickness, invalidity or death. This includes cases of maternity, child allowance, old age and unemployment. The “insured persons” by law means employees who are not under 15 years of age but not over 60 years. The first stage in enforcing this law started on 2 September 1990 with enterprises with more than 20 employees. Later, the coverage of insured persons was extended to enterprises with more than 10 employees on 2 September 1993. Since 1 April 2002, the enforcement of this law was expanded to cover enterprises with 1 employee or more. Every business enterprises that have employees must, therefore, contribute payment to the Social Security Fund, except certain types of employees, e.g. civil servants, employees of state enterprises. paras. 59–60. Ibid.: Measures on the protection of children and women from violence 81. Thailand has put in place the Plan of Action on Anti-Violence against Children and Women, which consists of: (a) Measure to Eradicate Violence against Women – according to the Cabinet Resolution dated 29 June 1999, e.g. suppression of pornography materials, enhancement of sex education arrangement for students, improvement on the provision of assistance to victims, etc. Under the measure is the setup of centres to provide assistance to children and women under critical circumstances, called the One Stop Crisis Centre – oscc in all public hospitals under the Ministry of Public Health and Bangkok Metropolitan Administration nationwide. The main objective is to provide assistance and care to victims of violence in a systematic and comprehensive manner, from physical and mental medical care to legal assistance and rehabilitation by multi-disciplinary team around the clock; (b) Master Plan of Action for the Prevention and Protection of Violence against Children and Women – according to the Cabinet Resolution dated 16 May 2000. The Provincial Committee on Women Development was set up since 1995, the aims of which are to tackle the problem of violence against women at provincial, district and village levels, e.g. extension of medical services to children and women in critical circumstances at public hospitals, provision of legal assistance and social services, and raising awareness of the public about violence against women, especially domestic violence and human trafficking; (c) The Women Development Plan in the National Economic and Social Development Plan No.10 (2007–2011) which mentions about increasing safety toward women’s

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lives and physical bodies, as well as enhancing attitude on gender equality between men and women. A budget has also been allocated under this plan to support unifem activities in addressing the problem of violence against women. para. 81.

Ibid.: Laws on the protection of elderly persons 87. The present Constitution endorses the right of the elderly persons who do not earn sufficient income for subsistence to receive welfare, public conveniences to facilitate their living in a dignified manner and appropriate assistance from the state (Article 53); and binds the state to provide assistance and arrange appropriate welfare for elderly persons, people in poverty, persons with disabilities and persons in difficult circumstances. (Section 80 (1)) Furthermore, the Act on Older Persons B.E. 2546 (2003) provides for the elderly persons the right to protection and support in accessing public welfare and services relating to medical and public health, education, religion, information, appropriate occupation or vocational training, participation in social affairs, as well as the fair and extensive distribution of subsistence allowance. Moreover, the government encourages children to take care of their father and mother. Any child supporting their father and mother who live in the same household can calculate the expenses incurred as additional tax deduction from his/her personal income tax. The Criminal Codes also prescribes conviction and sentences on persons who commit acts of torture against children under 15 years of age, sick people or elderly persons who have to depend on them for subsistence or other affairs. (Section 398). 88. The Social Security Act B.E 2533 (1990) grants the elderly persons who are insured persons or employees under the Social Security Fund eligibility of old age benefit, namely the monthly subsistence allowance, called Old Age Pension. To be eligible, the insured person must have paid contribution to the Fund over a period of not less than 180 months, regardless of whether the period is consecutive or not consecutive. If the insured person has paid contribution to the Fund for a period of less than 180 months, he/she will receive lump sum only once, called Old Age lump sum. (b) Policy on the protection of older persons 89. The present government has set a policy to give welfare cash subsidy to support the subsistence of older persons at the rate of 500 baht per month. Those eligible must have the following qualities: are over 60 years old, and do not have income from salaries, government reward fund or pension for old age. It is expected that in 2009, over 7.1 million older persons will have received the cash subsidy. To execute this policy, the government uses a budget of approximately usd 292 million3, set as a fixed regular budget, and is committed to continue paying this cash subsistence allowance to older persons every year in the future. 90. The government has prepared the National Plans for Older Persons, which is currently in the 2nd Plan (2002–2021). Due to the facts that the number of older persons in the country have significantly increased in the past years, and that Thai people live longer years than in the past, it can be regarded that Thailand has really entered the ageing society era. In the 2nd National Plan for Older Persons, the government emphasizes that ‘Our older persons will be the victory points of our s­ ociety,’ and they are ensured

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chapter 7 of their rights in various aspects, including economic, social and cultural rights. The Plan outlines five strategies as follows: • Strategy on the preparation for Thai citizens to become quality older persons. There are three measures: income insurance for old age; life-long education and learning; and stimulate conscience of the people in society to uphold the value and dignity of older persons. • Strategy on promoting older persons. There are six main measures: Enhancement of knowledge on health/health care, prevention and basic self-care, medical treatment; Co-existence and strengthening the organization of the elderly; Work and livelihood of the elderly; Support capable older persons; Support all types of media to run programs for the elderly and ensure their access to knowledge and information; and Support older persons to live in safe and fitting accommodation and environment. • Strategy on social protection system for the elderly, consisting of protection in four aspects, namely income, quality, family/caretaker, service system and caring and support network. • Strategy on enhancing the work regarding older persons at national level, and developing personnel working for the older persons. • Strategy on compiling and developing the knowledge about the elderly and monitoring and evaluating of the implementation under the National Plan for Older Persons. paras. 87–90. Ibid.: 93. With regard to income, the report of the Office of the National Economic and Social Development Board shows that in 2007 poor households have higher average income by 10.1% and have higher average expenditure by 8.1% compared with the figures of 2006. Poor households in Bangkok Metropolitan have the highest income, two times higher than the average income of poor households in the north which has the lowest average income. In terms of debt burden, poor households have usd 1,295.77 average debt/household, an increase of 12.8%, and poor households in the northeast have the highest average debt of usd 1,377.51/household, with a debt ratio of 63.84% of the total debt of poor households nationwide…. 94. Under the present Constitution, persons who are homeless and do not earn enough for subsistence shall have the right to receive appropriate assistance from the state. (Section 55) The government has laid down policy and several measures to assist the poor people, e.g. Urgent Policy to Address Poverty Problem which consists of the following key projects, e.g. Project to give monetary assistance toward the cost of living of usd 483.87 to every insured person under the Social Security Scheme, including personnel in the government sector who earn less than usd 483.87 /person/month. This project aims to stimulate cash flow in the economic system. Another project is the Subsistence Allowance for Elderly Persons who are over 60 years old and do not have salaries or government pension or reward fund for old age. The allowance is usd 16.12 /person/month, etc. Besides, the government has intensified the usage and disbursement of the national budget, especially on investment in state projects in order to inject money into the system and create more jobs. The government has also stimulated the private sector to play a bigger role in addressing economic problems, focusing on tourism and export sectors as the main tools. paras. 93–94.

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Ibid.: 115. The National Health Act B.E. 2550 (2007) is the health statute of people, which emphasizes on the health promotion rather than disease treatment. It encourages and supports the participation of the people and local administrative organizations in self-care for oneself and for their respective communities, e.g. the set-up of the Community Health Fund in 2006, which is a collaboration of the National Health Security Office and local administrative organizations, focusing on health promotion, disease prevention and rehabilitation care. At present, approximately 3,943 local administrative organizations have joined the project, covering a population of 31 million persons. 116. The Mental Health Act B.E. 2551 (2008) is the law that protects the rights of mentally ill patients to receive care, treatment and rehabilitation, covering both the health services scheme and the social security scheme of the government sector, in an equal and dignified manner, without any prejudice from society. paras. 115–116. Ibid.: 124. The government has acknowledged the importance of health of persons who have no status in the civil registration, whom the Universal Coverage Health Security Project cannot cover. On 23 March 2010, the Cabinet reached a resolution to approve a budget of 472 million baht to allocate to State hospitals along the border for use in medical treatment for persons with no registration status, which include minority groups living on the highland, persons who have taken refuge in Thailand for a long time and are waiting for the nationality verification process, and illegal migrant workers. 125. As for migrant workers who have legally registered, they are eligible for the right to medical care/ treatment equally with Thai labour workers according to the Thai Labour Act and the Social Security Act. Furthermore, the Ministry of Public Health has also set up the Board of Health of Migrant Workers to implement strategies on migrant workers in five aspects: (a) arrange a system of health care services for alien population, which suits their circumstance and limitations; (b) establish health security for the registered alien population or arrange for their eligibility for the Universal Coverage Health Security Scheme in the future; (c) encourage participation of the alien population and communities in practicing health care for themselves and their families; (d) cooperate with the Ministry of Labour in the development of an information technology system to collect and store data of migrant workers in all perspectives; and (e) enhance administration in support of implementing the health care strategy for aliens. paras. 124–126. Ibid.: Article 13 – Right to education 133. The present Constitution affirms the right to education by stating that every ­person has equal right to education of not less than 12 years, which the state must provide free of charge extensively to all population and in good quality. The impoverished, persons with disabilities, or persons in difficult circumstances must be able to ­enjoy that right and receive support from the State in getting equal e­ ducation with other persons. (Article 49) 1. Legal measures on education 134. The National Education Act B.E. 2542 (1999) is the model in the administration and management of the country’s education. It appoints the Ministry of Education

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chapter 7 as the core agency directly responsible and provides that the State must arrange for every person to have equal right and opportunity to basic education of not less than 12 years, which must be of good quality and free of charge extensively to the population. The State must also arrange for the following groups of people to be able to enjoy the right and opportunity to receive basic education specially arranged in appropriate forms with consideration of their capabilities: persons with deficiencies of the physical, mental, intellectual, emotional, social, communication and learning kinds, or persons with disabilities, persons without capability to depend on themselves or without caretakers, or disadvantaged persons. 135. The National Education Act B.E. 2542 (1999) states that the learning process must aim at the ability to promote and protect human rights, responsibility, freedom, rule of law, equality and human dignity. Therefore, under Thailand’s National Education Plan, the content about human rights has been incorporated into the school curriculum from primary level to higher secondary level, covering vast issues ranging from the knowledge about basic human rights to the International Declaration on Human Rights. 136. The Compulsory Education Act B.E. 2545 (2002) is the measure that forces parents to send their children to school, to attend compulsory education for nine years. The law holds the Ministry of Education or the Local Administrative Organizations responsible for arranging special education for children with deficiencies of the physical, mental, intellectual, emotional, social, communication and learning kinds, children with disabilities or without capability to depend on themselves or without caretakers, disadvantaged children or specially gifted children. These special children must be given compulsory education in appropriate forms and methods. The law also sets punitive measures on persons who cause children to lose their opportunity to attend school, or persons who do not inform the authorities about having children in school age living with them. paras. 133–136. Ibid.: 173. As with the rights to culture of various groups of tribal people who live in Thailand, the Thai government has laid down the following implementation measures: (a) support study and data collection on culture, local wisdom and art of hill tribes people and various ethnic groups for use of planning and operation in accordance with their respective ways of life; (b) promote the integration of cultural features into the development of eco-tourism among hill tribes communities and various ethnic groups, which will enhance their economic and social rights; (c) support cultural endeavours/activities of hill tribes people and ethnic groups according to their preferred skills and capabilities; (d) Support the conservation and revitalization of natural resources and the environments of local communities, as well as strong selfdependence; (e) promote cooperation between the public sector, the private sector and the civil society in the promotion and development of hill tribes products and in the conservation of traditional art and culture in order to develop and turn the power of these ethnic groups into Thai power. 174. With regard to Malayu-descended Thai Muslims in the southernmost border provinces of Thailand, the government has adopted the concept of ‘Understand, Access, Develop’ according to HM the King’s initiated development concept to implement development in the target area in accordance with its specific characters, way of

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life, culture and beliefs of the people there. The local people fully enjoy their rights and liberties to hold Islamic religious activities. The government has also declared Malayu Pattani language as another official language in the southern border provinces. Besides, various activities have also been held to promote the value and importance of identities and culture of the local people. paras. 173–174. un Doc. E/C.12/THA/Q/1-2 (December 2014). See also Orders No.64 and 66 on deforestation and evictions: Royal Gazette, Vol.131, Special Part 115 Ngor (20 June (B.E. 2557)(2014), p. 3; Royal Gazette, Vol.131, Special Part 121 Ngor (23 June (B.E. 2557)(2014), p. 1 (in Thai.). Thailand’s Reply: un Doc.E/C.12/THA/Q/1-2/Add.1 (April 2015): 2. Thailand, as a dualist in its legal system, international legal instruments do not apply directly in the judicial system. Hence it is not common that international legal instruments are invoked before and/or applied by the domestic courts…. 4. In addition, there are a few cases that economic, social and cultural rights are mentioned before or applied by domestic courts as part of “community rights” which is guaranteed by the constitution. Community rights, according to the constitution, encompass the collective economic, social and cultural rights of members of the community…. 11. Thai Constitutions, including the 2014 Interim Constitution, have always guaranteed all human dignity, rights, liberties and equality of the people. This includes those that fall into economic, social and cultural rights, such as rights and liberties in education and rights to public health services and welfare, among others. State authorities take into account these rights and liberties of the people when exercising their powers or implementing any project… 12. In addition to the Constitution, each government agency is obliged to comply with the recently-approved 3rd National Human Rights Plan (2014–2018), which incorporated elements from the Constitution, international human rights obligations to which Thailand is party as well as recommendations adopted for implementation pursuant to the Universal Periodic Review (upr). 13. It is important to note that nine out of eleven focus areas in the 3rd National Human Rights Plan relate to economic, social and cultural rights. These are human rights plans on public health; education; economic rights; natural resources and the environment; housing; cultural rights and rights concerning religion; data, information, information technology, and communication; transportation; and social security. The case of Map Ta Phut • In early 2009, local villagers from Map Ta Phut filed lawsuit to the Administrative Court against the government and demanded the government to protect the rights of local communities and solve the problems that resulted from their policy to develop the Map Ta Phut Industrial Estate. In particular, local communities called for the government to address the problem of health and environmental impacts that affected local residents. • The Administrative Court ruled that Map Ta Phut was a pollution-control zone and thereby suspended 76 projects in the Industrial Estate that were not in compliance with Section 67 of the 2007 Constitution. The Court’s ruling means that industrial companies needed to follow the measures required in Section 67 such as the conduct of necessary environmental and health impact assessments as well as the consultation with local communities in order to receive the permit license from the government. paras. 2–13.

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chapter 7 Ibid.: 24. Thailand does not have indigenous peoples according to the commonly used definition which implies pre-colonial or pre-settler societies. However, Thailand recognizes and protects the rights of peoples to ownership of the lands as well as the rights of peoples belonging to different ethnic groups residing in Thailand to maintain their cultural identities, lifestyles, and languages. 25. As a responsible member of the international community, Thailand has put its utmost efforts at home in preventing deforestation, one of the most urgent global climate challenges. Nevertheless, like in many other countries, Thailand has also faced with challenges in striking the right balance between fulfilling such global commitment and the obligations at home to the rights of our peoples and local communities to a fair share of the benefits in the utilization of the lands and natural resources. 26. It is also important that measures put in place by the government must be common and consistent in its implementation in different locations of the country while the groups of businessmen and business brokers are differentiated from the affected poor and people in vulnerable situations. 27. The government’s scheme with regard to land title and related documentation, therefore, encompasses different degrees of ownership as well as ability to transfer, to sell, and to utilize the land corresponding to different nature of the land, the location, and the duration of stay or inhabitation. 28. The Cabinet Decisions in 1997 as well as the recent Master Plan to Prevent Encroaching on Conserved Forest Land in 2014 fully recognize the rights of the people residing in the area before it was announced as conserved forest land by allowing them to be entitled to full ownership of the land transferable to their heir apparent provided that that piece of land is not classified as risk-damaging-surrounding-ecological-system. 29. Some other scenarios also include accommodative measures by the government to allow people to have rights to utilize the land and rights to temporary residing in the area with certain conditions. The rest cases, which involve new inhabitation and farming as well as encroaching in the conserved forest land, people are asked to move out of the area. Those particularly with limited means will be accorded with assistances such as housing, utility services, and training as well as occupational opportunities by various agencies of the government and interested ngos. 30. Agricultural Land Reform Office (alro), which was established since 1975, works to allocate land to farmers for living and dwelling, revitalize the environment, make use of the resources in land reform areas, develop infrastructures and support learning process, and provide financial assistance for farmer’s occupation. So far, several alro projects related to aiding the poor farmers have yielded mixed results. This is due to complications surrounding the issue as well as challenges in its implementation. 31.Self-settlement community project initiated by the Ministry of Social Development and Human Security (msdhs) in 43 locations throughout the country illustrates the example of the model used in allocation of the land to affected people to resettle, cultivate and make a living with support provided in term of basic infrastructure and job training. … 37. In addition, ngos have also campaigned for the governments to consider the package of 4 relevant legislations to help the poor including (1) to upgrade the Prime Minister

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Office Regulation 2010 to a Community Rights in Land Management Act, (2) put in place Land Tax Scheme Act that would redistribute wealth among the peoples in the country, (3) set up Land Management Bank, (4) establish a Justice Fund to support Land Management Bank operations and provide legal assistance and financial support to villagers affected in land disputed cases. 38. While the governments including the previous ones have taken these proposals into consideration, main ideas of some of these proposals have already been embraced and implemented. paras. 24–38. Ibid.: 42. The National Anti-Corruption Commission (nacc) is one of the main agencies responsible in combating corruption. nacc, an independent government agency created under the principle of checks and balances, is tasked to ensure the integrity and transparency of the government’s policies. nacc is the center point to receive corruption allegations from the public, examine the facts relevant to each case, and refer the case to the Office of the Attorney General for relevant judicial proceedings if needed. nacc encourages people to report suspected corruption cases and even provides witness protection for witnesses and reporters of corruption activity to the authority. 43. Corruption relating to land, forest, and natural resources has the greatest impact on people’s economic, social and cultural rights. nacc adopted specific measures to prevent corruption and unlawful conduct of State officials in cases relating to environmental protection and conservation, including environmental pollution caused by factories, use of waterway, replantation of rubber trees in accordance with the rubber replanting aid fund fact, water resources management, illegal logging, conserved forest land encroachment and issuance of permit for land use. 44. n acc is, as stipulated in the interim constitution of Thailand, responsible for coordinating international cooperation in compliance with international obligation to combat corruption. 45. With regard to implementation of the United Nations Convention against Corruption (uncac) which Thailand ratified on 1 March 2011 and has become Party to uncac since 31 March 2011, nacc has been actively participating in the Implementation Review Group, a peer review process conducted by Member States to review the other Member States’ obligations under uncac. In the case of Thailand, it is scheduled to undergo uncac implementation review process to be taken place in June 2015. In this regard, nacc closely coordinated with all agencies concerned to ensure a timely and comprehensive review process under the Convention. 46. As a Party to uncac, Thailand reaffirms its commitment to meet with the obligations under uncac. Currently, it is in the process of considering amending national laws related to the fight against corruption. nacc has submitted draft amendments to the Organic Act on Counter Corruption B.E. 2542 (1999) amended in B.E. 2550 (2007) and B.E. 2554 (2011) which is currently under review by the National Legislative Assembly. Furthermore, the Ministry of Justice is considering the amendment of the Criminal Procedures Code Act. 47. While nacc is responsible for the implementation of uncac, the Public Sector Anti-Corruption Commission (pacc) under the Ministry of Justice acts as a law

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chapter 7 enforcement agency responsible for prevention and suppression of corruption in the public sector. One of the pacc’s main strategies is setting up an operation center to collect information related to bureaucratic processes and support each Ministry in its endeavour to fight against corruption. The pacc works closely with the Department of Special Investigation and the Anti-Money Laundering Office, under the executive order of the Ministry of Justice, to investigate and prosecute government officials who have committed corruption. paras. 42–47. Ibid.: 53. Based on Thailand’s reservation to Article 4 of the said Convention, the country will only enact a legislation criminalizing racial discrimination if it sees the necessity to do so. A research conducted by the Ministry of Justice has shown that existing legislations are sufficient to curb racial discrimination in the country. 54. Thailand is party to the Convention on the Elimination of All Forms of Discrimination against Women (cedaw). Sexual discrimination is prohibited by law. Thailand has recently enacted a Gender Equality Act, a comprehensive legislation to prohibit discrimination based on sexes and sexual orientation. Discrimination among the sexes and genders is criminalized. The law also explicitly recognizes gender diversity. 55. While Thailand is not yet party to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, Thailand has long been known for its humanitarian traditions. We are acutely aware of the specific protection needs of various groups of persons and have provided shelter and care to many, including some 130,000 displaced persons from Myanmar, over the past three decades. We also allow unhcr to conduct its own Refugee Status Determination and provide necessary legal head room to ensure protection of the vulnerable group regardless of the lack of obligation under the said convention and protocol…. paras. 53–55. Ibid.: 65. During the reporting period, Thailand has implemented (1) the Women’s Development Plan under the Tenth National Economic and Social Development Plan (2007–2011) (WDP/10th NESDP) and (2) the Women’s Development Plan under the Eleventh National Economic and Social Development Plan (2012–2016) (WDP/11th NESDP). 66. The WDP/10th NESDP aimed at eradicating negative traditional values, beliefs and prejudices against women, which have been the root causes for discrimination against women and obstacles to gender equality. The Plan included five goals, namely (1) to achieve better respect of human dignity and gender equality among children, youth, women and men, (2) to increase the number of women in politics and administration at all levels, (3) to improve participation of women groups in the area of health policy formulation, and promote access to quality health care and reproductive health services, (4) to decrease violence against women, and (5) to create condition for improved women’s economic participation and benefits sharing. Under each goal, there are respective strategies to ensure the full implementation of the Plan. 67. Among these goals, progress has been made in promoting more women’s participation in politics and women’s representation in administration as well as in the private sector. At the central government administration, data during 2003–2010 showed that

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women holding executive positions increased from 20.94 per cent in 2003 to 24.44 per cent in 2010. In 2012 women accounted for 6.43 per cent of all decision-making positions in local administration. The rate was 39 per cent in the private sector, resulting in the fact that Thailand was ranked third of 34 countries surveyed by the Grant Thornton organization. 68. Thailand attaches importance to eliminating violence against women. 69. Among the recent developments, the Protection of Victims of Domestic Violence Act of 2007 has been enforced, and the One-Stop Crisis Centres have been set up nationwide to provide assistance and rehabilitation to women and children. 70. Currently, Thailand is now implementing the WDP/11th NESDP, which reinforces the efforts made to achieve the goals set forth in the WDP/10th NESDP. Half-term review of the WDP/11th NESDP revealed that there has been an increasing trend of women who take leading roles in the work of local community development in all regions of the country. The strategy to enhance economic and social opportunity of women has been the top priority and translated into projects and activities the most. However, the strategy to promote positive attitudes towards women’s empowerment and gender-equality, which may have been considered as the most intangible target, turned out to gain less attention and been less implemented in projects. The second half of the Plan implementation should, therefore, focus on the enhancement of economic status and awareness raising among both men and women about gender-equality. 71. In addition, Thailand has recently enforced the Gender Equality Act. Such law prohibits any policy, rule, order, announcement or any act of a private person, State agency and independent organization under the Constitution that is deemed to discriminate on the basis of gender. The law puts in place a mechanism to remedy and redress those affected by such discrimination. The law was also drafted by taking into account Thailand’s commitment under international human rights instruments. paras. 65–71. Ibid.: 72. Findings from the 3rd Quarter of the 2014 Labour Force Survey show that by the end of the quarter there were 38.8 million people in the labour force, of these, 38.4 million were employed, 0.33 million were unemployed and 0.06 million were seasonally inactive, giving an effective unemployment rate of 0.84 per cent. In addition, among those outside the labour force, 4.8 million were in household work, 4.4 million were students and 6.9 million were in other situations. (b) Ethnicity 73. Thailand is home to a number of distinct ethnic groups, including the majority of Thai and numerous hill tribes living primarily in the north. While Thailand attaches great importance to ensuring the right to work for all regardless of ethnicity, the Government is aware of various challenges faced by various groups of people. In this regards, the Department of Social Development and Welfare, msdhs has initiated the Highland Career Development Project aiming at supporting and developing careers for low-income people living in 20 highland provinces to earn sufficient income for a decent living and better quality of life.

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chapter 7 (c) Disability 74. Workers with disabilities are protected by law to be treated equally as other workers. This principle also extends beyond the sphere of labour where all persons with disabilities are to be treated equally as those without disabilities. In order to ensure equal treatment, the Promotion and Development of Quality of Life for Persons with Disabilities Act B.E. 2550 (2007) requires that employers, both in public and private sectors, employ persons with disabilities according to appropriate nature of the assigned work and the condition of such persons. In addition, Ministerial Regulations, issued by the Ministry of Labour by virtue of the Act, also stipulate that employers and owners of any workplace with more than 100 employees must employ one person with disabilities for every 100 employees with remaining number in excess of 50 counted as 100. The same requirement also applies to all governmental bodies. Statistics reported by msdhs show that, in 2014, 40.6 per cent of persons with disabilities of working age were employed, 45.2 per cent were unemployed, and 14.2 per cent were not in the labour force…. (d) Sex 75. Thailand is of the view that gender equality is not a women’s issue but should concern and fully engage men as well as women. Today, Thai women have earned respect and become successful in business, politics, and many other professions. They also play an instrumental role in the Thai society. According to the findings of Labour Force Survey, in 2001, the ratio of men to women’s employment in professional fields was 2.9, suggesting that men were close to three times more likely to be employed than women. This figure has declined over the year to 2.7 in 2010, indicating a decreasing gender gap. In addition, the overall unemployment rates of both male and female have been nearly identical over the past 12 years, indicating our success in encouraging equal employment opportunities and balancing the participation of both men and women in the workforce…. (e) Age 76. Statistics on unemployment rate disaggregated by age show that people between the age of 15 and 24 years have consistently been the highest unemployed group over the past decade. In addition to rapid increase in enrolment in tertiary education and advanced degrees which created a pool of new graduates in a slowly adjusting job market, the Social Situation and Outlook Report, 4th quarter of 2013 issue, launched by the Office of National Economic and Social Development Board, also discovered that the vast majority of employers tend to look for workers who have more experience, firm-specific training, and high productivity rate. Therefore, it is often challenging for new graduates or young workers to satisfy such requirements. To address this problem, the Ministry of Labour tries to promote better understanding of new graduates about their qualifications in order to match the employee’s requirement as well as to improve communication for more efficient dissemination of job availability. The Federation of Thai Industries is now working with the Ministry of Labour and the Office of Vocational Education Commission to initiate several projects to promote employment and human resources development in parallel. For example, training programs in which entrepreneurs invite both teachers and students to learn more about companies’ work so as to encourage a greater linkage between education and practical work as well as employment…

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( f ) Urban/Rural 77.  Statistics on unemployment rate disaggregated by region show a gradual but downward trend over nearly half the decade with little variation across regions. While all regions enjoy steady decline in unemployment rate over this period, the South has shown slight increase in unemployment in recent years. Consequently, the Ministry of Labour has officially launched its first ‘Smart Job Centre’ in Songkhla province in February 2015 as the host centre for provinces along the Southern border. The centre consists of a job vacancy search team and a recruitment team to provide advice for job seekers as well as to develop skills in order to achieve higher incomes in return. Due to the success of the centre, the Ministry is now preparing to expand services to major provinces around the country…. paras. 72–77. Ibid.: 78. In 2014, Thai government has implemented nation-wide registration scheme for illegal migrants from Myanmar, Laos and Cambodia, to ensure that all migrant workers will be covered, protected and provided with welfare under Thai labour law and to prevent them from falling prey to exploitation, especially those in the fishing industry and related businesses. During the permissible registration period from June to October 2014, approximately 1.6 million migrant workers and their dependents have been registered and issued temporary permits to work and stay in Thailand while awaiting Nationality verification. 79. All registered migrant workers purchased health insurance, provided by the Ministry of Public Health, at an affordable cost (around usd 50 per year) so they can enjoy public health services identical to Thai citizen under the universal health coverage. They are also acknowledged of their labour rights and notified of channels of complaint mechanism. Migrant workers’ dependents are also registered and are subject to free compulsory education and allowed access to public health services. All other complementing services, such as interpretation, are also provided to make sure all migrants can access health and other social services effectively. 80. All migrant workers in Thailand with valid visas and stay permits enjoy freedom of movement within the country. And while illegal migrant workers have certain limitation due to their legal status, all registered migrant workers waiting for nationality verification also enjoy freedom of movement within the province of their employment and outside in case they are travelling with their employers. 81. Migrant workers have access to their personal documents and all relevant authorities are actively raising awareness among migrant workers and employers to make sure that access to passports and work permits are compulsory both to ensure freedom of movement as well as to prevent forced labour or labour trafficking. 82. To effectively eliminate forced labour in fishery industries, the Thai Government has initiated the process to comprehensively register labour on fishing vessels so that they can benefit from labour protection under Thai law. The Government also revised the Labour Ministerial Regulation to Protect Labour in the Sea Fishing Industry B.E. 2557 (2014) to provide workers with more comprehensive protection, better work condition, elimination of child labour on board, and guarantee that every worker is hired using standardized labour contract. Labour Management Centres (lmc) are

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established in every coastal province to effectively protect rights of fishery labours and protect victims of trafficking in sea fishing industry. Relevant agencies has integrated their mandates on fishing boats inspection and developed a central database for comprehensive examination to detect any exploitation, violation of labour rights and illegal fishing on board. The government also takes preventive measures on regulating fishing boats by revising Sea Fishing regulations and establishing vessel monitoring and reporting system to minimize the risk workers may face in association with illegal, unreported and unregulated fishery. 83. As a result of intensified fishing boat inspections, from October 2013 to September 2014, 652 vessels were inspected. Among this number, 29 fishing vessels violated labour rights. For such cases, the Ministry of Labour will issue an order for the employers to comply with the law and schedule follow-up inspection. Failure to comply with the law will result in imposed fines. In case where child labour or forced labour is found on board, the worker will be immediately rescued and the labour inspector will refer the case to police to press charge against the employer and vessels’ owner. paras. 78–83. 31 Ibid.: Non-nationals 84. According to the Labour Relations Act B.E. 2518 (1975), migrant workers are not allowed to form a trade union (Section 88) but are allowed to join a trade union (Section 95). Meanwhile, the Thai Government is working on the amendments to related legislation to promote further trade union right, namely the Labour Relations Act and the State Enterprise Labour Relations Act. The draft amended Acts were approved by the Council of State1 on 22 July 2014 and will be presented to the cabinet for approval in due course. … 86. The Civil Servant Act B.E. 2551 (2008), Section 43 stipulates that “Civil servants have the liberty to assemble as a group as provided in the Constitution, provided that such assembly does not affect the efficiency of national administration and continuity of public services and must not have a political objective. The rules, ­procedures and conditions for assembly under paragraph one shall be as prescribed by Royal Decree. paras. 84–86. 32 Ibid.: 87. By virtue of the above mentioned law, the Draft Royal Decree concerning the liberty of assembly has already been approved by the Council of State in 2014 and is now ready to be presented to the Cabinet for consideration. para. 87. The laws was enacted in 2015: Public Asssembly Act B.E.2558, Royal Gazette, Vol. 132, Part 63 Kor (14 July 2015), pp. 19–29 (in Thai). 33 Ibid.: 90. According to the Social Security Act B.E. 2533 (1990), employers who have at least one employee must register their employee(s) under the social security scheme. The social security scheme provides benefits for employees in the formal private sector, regular migrant workers (Section  33) and workers in the informal economy (Section  40). In addition, migrants from Laos, Cambodia and Myanmar, who have completed the nationality verification process under the Regularization Scheme are eligible to receive benefits under the Social Security Act. 91. If these workers suffer injuries caused by work and have already informed such incidents to authorities, the Workmen’s Compensation Act B.E. 2537 (1994) allows authorities to impose responsibility on employers to compensate those injured directly, regardless of their legal status.

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92. The Thai government attaches great importance to ensuring that migrant workers are well informed of their rights under labour laws. For example, translators and materials in various languages are provided to inform all migrant workers of their rights as part of the Regularization Scheme. Meanwhile, Thailand has also set up Hotline Services to receive complaints with translators provided in provincial labour centres in order to accommodate migrant workers’ need in a timely manner. The Ministry of Justice also provides legal assistance to all migrant workers based on humanitarian considerations including, among others, free legal counselling, complaint mechanism, and financial support in accordance with the Ministry of Justice’s Regulation on Justice Fund (2010). The Ministry has also established the Remedy Centre for Victims of Crime as a proactive mechanism to respond to the needs of crime victims including migrant workers. 93. Challenge remains in providing workers in informal economy and their families with social security coverage. Attempts to extend coverage to this group include the provision (under Section 40 of the Social Security Act B.E. 2533 (1990)) of a voluntary package, partly subsidized by the Government, which covers sickness, invalidity, death, and an optional old-age benefit in the form of a lump sum payment. The scheme was reviewed in May 2010 with the coming in to force of a new Royal Decree offering new benefit packages with greater government subsidy to encourage workers in the informal economy to take part in the social security scheme. 94. The Thai Government has also declared its intention to address the issue of workers in informal economy and had made the expansion of social protection a key target of the 11th National Economic and Social Development Plan for 2012–2016, with the objective of creating ‘more justice in society.’ 95. In March 2010, a Social Protection Floor Joint Team (spfjt) was set up to support the Thai Government’s efforts in progressively implementing a rights-based, systemic, and adequate social protection system. The team is led by the International Labour Organ­ ization (ilo) with coordinated support from other United Nations bodies. The main objective is to develop a holistic and coherent vision on social protection in Thailand to move towards the provision of universal and basic social protection…. paras. 90–95. Ibid.: 99. The following are measures taken to enforce legislation: (a) The Announcement of the National Committee on the Elimination of the Worst Forms of the Child Labour concerning types of hazardous works for child labour in Thailand signed by the Minister of Labour on 9 November 2013 categorizes hazardous works for child labour into 2 categories: Type 1 Work that jeopardizes the physical, mental or moral well-being of a child because of its nature; Type 2 Work that jeopardizes the physical, mental or moral well-being of a child because of the conditions in which it is carried out. The Announcement does not only ensure compliance with ilo Convention 182, but also increases transparency in terms of management of child-labour issue. Most importantly, it imposes legal penalties for violation of the Announcement; (b) Thailand has also stepped up its campaign against every worst form of child labour with the formation of a National Committee on the Elimination of the Worst Forms of the Child Labour to oversee national efforts to eliminate every worst form of child labour. In addition, the Ministry of Labour, in cooperation with Institute of

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chapter 7 Population and Social Research, Mahidol University, has recently finished drafting the National Plan and Policy to Eliminate the Worst Forms of Child Labour for the 2015–2020 fiscal years, to be launched in 2015; (c) The Tourism Authority of Thailand and the Ministry of Tourism and Sports have joined efforts in combating sex tourism by taking strict measures against travel and transportation agencies involved in sex tourism. One notable activity is the cooperation with the ecpat International, Child Wise and Accor Asia Hotels in the implementation of the Code of Conduct for the Protection of Children from Sexual Exploitation in Travel and Tourism. Trainings were organized for provincial tourism agencies and members of the private tourism association on how to cope with suspected and actual cases of child-sex tourism and how to apply preventive measures. Police officers have been designated to carry out surveillance and investigation, and to notify the Tourist Police of any suspected cases of child-sex tourism; (d) The Centre for the Protection of Children, Youth and Women within the Royal Thai Police was established in 1998 to provide assistance to children, youth, and women who have been assaulted and sexually abused. The center has adopted a more human-rights and victim-centered approach, taking into account the vulnerabilities of the victims and their best interests. (e) msdhs developed a 24-hour hotline 1300, operated by the Center for Social Assistance (One Stop Crisis Center – oscc) to provide assistance to children, women, elderly, disabled, and those experiencing social problems, including human trafficking. In addition to the hotline, 3 other channels of case reporting are available including (1) through 20,000 centers in various local government agencies throughout Thailand (2) through the official website at http://www.osccthailand.go.th and (3) through oscc Mobile Application. Once the hotline received report of social problems, the case is immediately referred to relevant authorities for prompt rescue or initiation of investigation. In 2014, there were 3,485 reported cases, with the majority of cases of violence against children, women, disabled and elderly persons. Interpreter services are also provided in 5 languages including English, Cambodian, Myanmar, Vietnamese and Chinese, with more than 40 volunteer interpreters in roster. In 2014, the 78 Centers rendered assistance to 138 foreigners. 100. In 2014, a total of 280 cases of trafficking in persons were investigated, 155 defendants were prosecuted and 104 defendants were convicted. Among 104 convicted defendants, 24 were sentenced to between 1 and 3 years jail term; 40 were sentenced to between 3 and 5 years jail term; 11 were sentenced to between 5 and 7 years jail term; and 20 were sentenced to between 7 and 30 years jail term. 101. The Thai government provides comprehensive services to victims to ensure access to all basic necessities, proper and specialized medical treatment, physical and mental rehabilitation, education and skill training, as well as legal aid and legal action to acquire restitution, compensation and remedies. In 2014, 303 victims are under protection of msdhs. Among this number, there are 67 Thai victims and 236 foreign victims. The majority, 165 victims, are adults. Labour trafficking is the most prevalence form of exploitation with 188 victims identified. The rest comprises 108 victims of sexual exploitation and 7 victims of forced begging.

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102. Victims also have the right to initiate legal proceeding to acquire remedies, restitution and compensation as provisioned in the laws, including: (1) Financial Aid from the Anti-Trafficking in Persons Fund (USD3 124,934 dispensed for 463 victims); (2) Civil Compensation for damage suffered from human trafficking (usd 287,111 for 57 victims – 14 Thais and 43 foreign victims – trafficked to Thailand and usd 751,639 for 19 Thai victims returned from abroad); (3) Unpaid wages, under the Labour Protection Act B.E. 2541 (usd 25,284 for 39 victims – 14 Thais and 25 foreign victims); an and (4) Victim compensation in criminal cases (usd 53,000 for 53 victims). paras. 99–102. Orders 64 and 66 (2014), supra note 23. Supra note 34: 119. Thailand has achieved the Universal Health Coverage (uhc) since 2002. According to the statistics by National Economic and Social Development Board at the end of 2014, 99.87 per cent of the Thai citizens are being covered by health insurance schemes guaranteeing them equitable access to essential health service packages at reasonable price for primary health care as well as more comprehensive ones, including coverage and treatments for such diseases as aids, cancer, and kidney diseases. 120. The Thai Government’s uhc objective is to address the right to health security of the Thai people by providing all Thais with access to efficient and reasonably-priced health services. 121. Various measures are being taken to further improve the services for the people, taking into consideration the challenges of demographic change – particularly the emergence of the aging society, and the increase of non-communicable disease cases. These measures include: • Further strengthening capacities of hospitals and local health service centres upcountry to become major service providers for patients as well as the elderly, whose proportion of population is on the rise; • Applying innovative mechanisms to finance the uhc system, such as use of excise tax, to ensure the sustainability of the services for all at reasonable price that would not impose extremely high costs on the people; and • Expanding the benefit package and service delivery methods to effectively serve the people throughout the country. 122. Challenges in ensuring uhc in practice include: • Limited use of provided health services in the vulnerable groups such as those with disabilities and mental health problems as well as bed-ridden patients who stay at home; • Overcrowding problem in hospitals at provincial level; and • Need of early diagnosis via early visit to doctors for diseases such as diabetes, high blood pressure, aids, and chronic kidney failure and asthma, to prevent disease burden in the long run. paras. 199–122. Ibid.: 129. Education is a sector in which Thailand has invested heavily – almost 20 per cent of the Government budget in 2015. 130. Thailand already achieved the target of eliminating gender disparities in primary and secondary education by 2005. The 12-year free basic education has been provided for every child in Thailand regardless of their sex according to laws.

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chapter 7 131. Nevertheless, Thailand is yet to achieve universal primary education. According to the report entitled “Thailand: Monitoring the situation of children and women” by the National Statistical Office and unicef, it is found that in 2012 the net school attendance rate was 95.7 per cent. The rate was lower in secondary school, at 78.8 per cent. It is important to note that there was no significant difference in terms of gender, area (urban/rural) and region, in particular during primary level. 132. It was also found that the higher the level of education, the higher rate children and youth leave school. More than 97 per cent of children aged between 5 and 11 years old (primary school age) attended school. The rate however started to decline for those aged 12 to 14 years old. For children and youth aged between 15 and 20 years old (upper secondary and higher education levels including vocational education), the school attendance rate dropped dramatically. paras. 129–132. Ibid.: 140. The Ministry of Culture has been active in protection of rights of ethnic groups as well as protection and promotion of their arts, culture and local wisdoms. In doing so, participation of individuals belonging to ethnic groups is encouraged. 143. The lese majeste law is part of Thailand’s Criminal Code. It gives protection to the rights and reputations of the King, the Queen, the Heir-apparent, or the Regent in a similar way libel law does for commoners. 144. The law is not aimed at curbing people’s rights to freedom of expression nor the right of everyone to take part in cultural life and to have necessary freedom for creative activities. 145. Number of cases filed to the Court in application of lese majeste has been kept to the minimum. Bearing in mind of people’s freedom and rights to cultural life and creative activity, the law has never been used in a manner to restrict legitimate exercise of academic and cultural rights including debates about the monarchy as an institution. Implementation of the computer crimes law was subject to court supervision. 146. However, under certain circumstance that poses challenge to national security, many statements under lese majeste law explicitly aiming to incite hatred and create disharmony in the society have been found widely spread on the internet. 147. Right to use the Internet: • The use of internet is under the responsibility of the Ministry of Information and Communication Technology. Being aware of people’s rights to information and cultural activity on the internet, censorship of inappropriate content online is carried out in a very restrictive manner and under the process which is governed by the law; • According to Computer Crime Act, restriction of dissemination of unlawful internet data must be approved by the minister of information and communication technology and only by a Court order. The grounds for such restriction are prescribed by the law namely the data being harmful to public order or created by criminal offences relating to national security and terrorism. Once a court order is issued, the service provider would be notified to restrain the dissemination of such internet data. 148. It is important to reiterate that while ensuring that the legal provisions are not misused to restrict the rights to take part in cultural life, the freedom for creative

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activities, and the use of internet, efforts should also be made to prevent the well intention of promoting these rights and freedom from being misused to allow for the incitement of hatred and the creation of social disharmony. paras. 140–148. ngo reports included submissions by the Cross Cultural Foundation and International Commission of Jurists. Concluding Observations un Doc. E/C.12/THA/CO/1-2 (June 2015), para. 4–5. Ibid.: 6. Noting the State party’s dualist system of reception of international treaties, the ­Committee is concerned that the Covenant has still not been given full effect in the State party’s domestic law and therefore not all Covenant rights can be invoked before courts (art. 2). The Committee recommends that the State party take all necessary steps to guarantee the full effect of Covenant provisions in its domestic legal system, including through the courts. In light of the on-going constitutional reform, the Committee invites the State party to give direct constitutional recognition to the Covenant to guarantee its enforceability by courts. It also recommends that the State party provide mandatory training to enable judges, lawyers and other relevant professionals to uphold economic, social and cultural rights. In this respect, the Committee draws attention to its general comment no. 9 (1998) on the domestic application of the Covenant. para. 6. Ibid.: 7. The Committee is concerned that the institutional shortcomings of the National Human Rights Commission of Thailand (nhrct), identified by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (icc), including in relation to its independence and the selection process for Commissioners, have still not been fully overcome(art. 2). The Committee recommends that the State party take all necessary legislative and other measures, including following up on the recommendations made by the icc, to ensure that the nhrct is a fully independent institution with the necessary resources to fulfil its mandate in conformity with the Paris Principles. It further recommends that the State party create the necessary conditions for the nhrct to fully exercise its mandate in relation to economic, social and cultural rights and protect victims of violations of these rights. para. 7. Ibid.: 8. The Committee is concerned at reports indicating widespread and pervasive corruption, despite measures taken by the State party, and its adverse impact on the enjoyment of economic, social and cultural rights(art. 2). The Committee recommends that the State party: a. Address, as a matter of priority, the underlying causes of corruption; b. Enhance the effectiveness of the legal, structural and policy measures to combat corruption at all levels and sectors; c. Ensure protection to victims of violations of economic, social and cultural rights caused by corruption and their lawyers, as well as to whistle-blowers and witnesses of corruption cases; d. Implement awareness-raising campaigns about the detrimental impact of corruption on the allocation of maximum available resources for the fulfilment of economic, social and cultural rights; and e. Regularly evaluate the impact of the measures taken. para. 8.

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chapter 7 Ibid.: Rights of indigenous peoples 9. The Committee expresses concern at the lack of recognition of indigenous peoples by the State party (art. 1.2). In light of the on-going constitutional reform, the Committee invites the State party to reconsider its position and give legal and political recognition to its indigenous peoples based on self-identification. The Committee recommends that the State party in particular guarantee the right of indigenous peoples to own, use, control and develop the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. The Committee also encourages the State party to consider ratifying ilo Convention No. 169 concerning Indigenous and Tribal Peoples. para. 9. Ibid.: Land and natural resources 10. The Committee is concerned at: (a) The denial of the traditional rights of ethnic minorities to their ancestral lands and natural resources and the concentration of land ownership in the hands of a very small proportion of the population; (b) Information received that the implementation of its forest conservation policy, in particular ncpo Orders No. 64/2557 and 66/2557 of 2014, has resulted in the destruction of crops and forced evictions; and (c) The adverse effects of economic activities connected with the exploitation of natural resources, including large-scale projects such as the Map Ta Phut Industrial Estate, on the enjoyment of economic, social and cultural rights by people living in the areas concerned and the lack of participatory mechanisms and consultations, as well as limited access to information for affected individuals and communities (arts. 1.2, 2, 11, 12 and 15). The Committee recommends that the State party take all necessary steps, including revising its legal and policy framework, to: (a) Effectively remove all obstacles to enjoyment of traditional individual and communal rights by ethnic minorities in their ancestral lands and take effective measures to guarantee land tenure rights without discrimination so as to ensure access to land and adequate housing for all; (b) Ensure that forced evictions are only used as a measure of last resort and persons forcibly evicted are provided with adequate compensation and/or relocation, bearing in mind the Committee’s general comments no. 4 (1991) on the right to adequate housing and no. 7 (1997) on forced evictions; and (c) Adopt a human-rights based approach in its development projects, as well as establish participatory mechanisms in order to ensure that no decision is made that may affect access to resources without consulting the individuals and communities concerned, with a view to seeking their free, prior and informed consent. para. 10. Another example of a successful action concerning environmental protect is the case of conflict between local community and Khao Khu Ha Lime stone mine, operating in Songkhla from 1997. On 20 January 2015, the Supreme Court decided that the stone mine

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company must provide financial compensation worth in total 15,950 usd with 7% rate of interest to 4 affected villagers who had suffered from damaged houses, dust, noise pollution, vibration and health problems. Songkhla Kwang Court, Khadi Black Number 588/2553: Renu Sansuwan et al. v Pimolmai-ning Company: Green Consumer [online access],http:// www.consumersongkhla.org/paper/1697, 2 August 2011, (accessed 22 October 2015). 46 Ibid.: Enabling environment for civil society 11. The Committee expresses concern at reports of enforced disappearances and killings of land rights and environmental activists, with perpetrators often going unpunished. The Committee urges the State party to adopt all measures necessary to protect human rights activists, including those working to defend economic, social and cultural rights, from any and all acts of intimidation, harassment and killings and to ensure that perpetrators of such acts are brought to justice. para. 11. 47 Ibid.: Transnational corporations and other business enterprises 12. The Committee is concerned at the lack of a regulatory framework to ensure that companies which are incorporated or have their main offices under the State party’s jurisdiction fully respect economic, social and cultural rights when acting abroad (art. 2.1). The Committee recommends that the State party establish a clear regulatory framework with a view to ensuring that companies incorporated or with their main offices under the State party’s jurisdiction are legally accountable regarding violations of economic, social and cultural rights in their projects abroad, in particular in cross-border development projects. The State party should also take into account its obligations under the Covenant when negotiating international agreements. The Committee draws the attention of the State party to its statement on the obligations of State parties regarding the corporate sector and economic, social and cultural rights (E/2012/22E/C.12/2011/3, annex vi, section A). para. 12. 48 Ibid.: Non-discrimination 13. The Committee is concerned that there is no comprehensive anti-discrimination legislation in the State party (art. 2). Taking into account its general comment no. 20 (2009) on non-discrimination and economic, social and cultural rights, the Committee recommends that the State party adopt a comprehensive anti-discrimination law that includes all the grounds for discrimination set out in article 2of the Covenant. In light of the on-going constitutional reform, the Committee further recommends that the State party ensure the protection of all rights enshrined in the Covenant in its new Constitution, and guarantee their enjoyment without discrimination. The State party should also guarantee that the enjoyment of rights already acquired under the 2007 Constitution is not subject to any retrogressive measures. para. 13. 49 Ibid.: Stateless persons 14. The Committee notes the efforts of the State party to reduce statelessness, including amendments to the Nationality Act and the Civil Registration Act, establishing

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chapter 7 universal birth registration. However, it is concerned that a large number of persons remain stateless, particularly among ethnic groups, migrants, refugees and asylumseekers, which consequently leads to a denial of their economic, social and cultural rights. The Committee is also concerned that a large number of births are not registered in practice and that gaps remain in the Nationality Act, including with regard to the right to nationality for children found abandoned(arts. 2, 9–10 and 12–14). The Committee recommends that the State party continue strengthening its measures to facilitate the naturalization and integration of stateless persons, including by addressing remaining gaps in the Nationality Act, as well as to ensure the enjoyment of their economic, social and cultural rights. It also recommends that the State party consider acceding to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. para. 14. Ibid.: Asylum-seekers and refugees 15. While expressing appreciation of the State party’s continued commitment to hosting a large number of refugees and migrants from neighbouring countries and its continued cooperation with the United Nations High Commissioner for Refugees (unhcr), the Committee is concerned at the absence of an overall legal framework protecting the rights of asylum-seekers and refugees and lack of a formal national refugee status determination procedure, which hinders the full enjoyment of their economic, social and cultural rights(art. 2). The Committee urges the State party to adapt its legal framework with a view to ensuring due protection of asylum-seekers and refugees in line with its international obligations and the full enjoyment of their economic, social and cultural rights. The Committee encourages the State party to re-examine its position with regard to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol thereto and continue its cooperation with the unhcr in this regard. 16. The Committee is concerned at reports that migrants and refugees, in particular Rohingyas, were left without access to emergency assistance after being denied the possibility to disembark their vessels, leaving them stranded at sea(arts. 2 and 10). The Committee calls on the State party to redouble its efforts, including through strengthened international and regional cooperation, to ensure that the economic, social and cultural rights, including access to water, food and medical assistance, of all migrants and refugees arriving on boats are protected and to stop boat ‘push-backs.’ The State party should also engage with other countries in the region, as well as unhcr, the Office of the High Commissioner for Human Rights and other international institutions to address the root causes of migrant and refugee flows. paras. 15–16. Ibid.: Equality between men and women 17. While noting the adoption of the Gender Equality Act (2015), the Committee is concerned that the Act permits discrimination against women, inter alia, on grounds of religious practice and national security (art. 3). The Committee recommends that the State party revise its Gender Equality Act with a view to eliminating any discriminatory provisions.

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18. The Committee is concerned at the persistent gender-role stereotypes in the family and society, which results in a low level of women’s representation in appointed and elected positions in the public and political decision-making, sex segregation in employment, both vertical and horizontal, and violence against women, including domestic violence (arts. 3 and 10). The Committee recommends that the State party take measures to eliminate the gender-role stereotypes and ensure equal enjoyment of economic, social and ­cultural rights by men and women. In this regard, the Committee refers to general comment no. 16 (2005) on the equal right of men and women to the enjoyment of all economic, social and cultural rights. paras. 17–18. Ibid.: Conditions of work and social security 19. The Committee is concerned at the scale of the informal economy in the State party and that despite the introduction of a voluntary benefit package, a large number of individuals work without legal and social protection. It is also concerned that many domestic workers are not covered by the Home Workers Protection Act and thus do not enjoy guarantees with regard to, inter alia, minimum wages, working hours, overtime payment and social security. Moreover, the Committee is concerned that subcontracted workers are not adequately protected by labour and social protection regulations in practice. The Committee is particularly concerned that these gaps have a disproportionate negative effect on women and migrant workers (arts.3, 7 and 9). The Committee recommends that the State party take all necessary measures to progressively reduce the extent of the informal economy and increase employment opportunities in the formal labour market. It should also take further steps to ensure that all workers, including subcontracted, domestic and informal economy workers, fully enjoy their economic, social and cultural rights. Forced labour 20. The Committee expresses concern at the persistence of forced labour in the State party, particularly in the fishing industry (arts. 6 and 7) and its impact on migrant workers. The Committee recommends that the State party further strengthen its measures to eradicate forced labour, including by increasing the capacity of the labour inspectorate to monitor working conditions on fishing vessels on a regular basis. It should also ensure that those employers violating labour rights are prosecuted and, if convicted, commensurate sanctions are imposed and effectively implemented. The Committee further recommends that the State party consider acceding to 2007 ilo Convention No. 188 concerning work in the fishing sector. Migrant workers 21. The Committee notes the information provided by the State party on the implementation of a nation-wide registration scheme for undocumented migrants in 2014. Nevertheless, the Committee is concerned at consistent reports of abuse and exploitation of migrant workers, in particular migrants in irregular situations and working in special economic zones (art. 7). The Committee recommends that the State party explore the need for additional measures to ensure that all migrant workers, regardless of legal status, are entitled to

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chapter 7 labour and social protection and can access justice for violations of their rights. The Committee also encourages the State party to ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Minimum wage and wage gap 22. The Committee is concerned that the minimum wage established by the State party is not sufficient to ensure decent living conditions for workers and their families. The Committee is also concerned at the persistent wage gap between men and women (art. 7). The Committee recommends that the State party take the necessary steps to ensure that all workers receive a minimum wage that enables them to enjoy decent living conditions for themselves and their families, in line with article 7 of the Covenant. It also recommends that the State party take further steps to eliminate the persistent wage gap between women and men. paras. 19–22. Ibid.: Trade union rights 23. The Committee is concerned that educational personnel of private and public universities, workers of ‘public organizations’ and non-Thai nationals do not have the right to form trade unions (art. 8). The Committee urges the State party to ensure that all employees in both the private and public sectors effectively enjoy the right to freely form and join trade unions and extend the right to non-nationals. Given the large number of migrant workers in the State party, the Committee emphasises the importance of recognizing their right to form and join trade unions to represent their interests with a view to improving the enjoyment of their economic, social and cultural rights. Right to strike 24. The Committee is concerned that under the State Enterprise Labour Relations Act, all public sector employees do not enjoy the right to strike (art. 8). The Committee recommends that the State party ensure that public sector employees who do not provide essential services are entitled to their right to strike in line with the Covenant and relevant International Labour Organization (ilo) standards. The Committee invites the State party to ratify ilo Convention No. 87 concerning Freedom of Association and Protection of the Right to Organise (1948). paras. 23–24. Ibid.: Economic and sexual exploitation of children 25. The Committee is concerned that, despite measures taken, child labour is still widespread, including in agriculture, fishing and the informal economy, and that many children continue to be exploited in the child sex tourism industry (art. 10). The Committee recommends that the State party increase its efforts to: (a) Effectively enforce legislation which prohibits child labour and hold accountable those responsible for non-compliance with this legislation and reinforce the labour inspection system to monitor and detect child labour; (b) Intensify economic and social support measures for poor, disadvantaged and marginalized families; and

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Combat child sex tourism, including by establishing and implementing a comprehensive regulatory framework and strengthening international cooperation and advocacy with the tourism industry on the harmful effects of child sex tourism. para. 25.

Ibid.: Trafficking in persons 26. While noting the measures taken to combat trafficking in persons, the Committee is concerned at the persistence of trafficking in persons, including women and children, for purposes of sexual exploitation and forced labour in the State party. The Committee is particularly concerned at the limited identification of victims of trafficking by law enforcement officers (art. 10). The Committee recommends that the State party intensify its efforts to prevent and combat human trafficking, including of women and children, for purposes of sexual exploitation and forced labour, inter alia, by ensuring adequate training of law enforcement officers and the judiciary, with a view to improving early identification of victims. In that regard, the Committee calls on the State party to fully implement the recommendations of the Special Rapporteur on trafficking in persons, especially women and children, contained in the report of her mission to Thailand (A/ HRC/20/18/Add.2). para. 26. Ibid.: Housing and standard of living 27. The Committee is concerned at reports that 10% of families in urban areas live in informal settlements, are vulnerable to forced evictions and encounter major problems in accessing basic services. The Committee is also concerned that despite a continuous decline, an estimated 10.94% of the total population lives in poverty, particularly affecting children, older persons and persons living in rural areas (art. 11). The Committee recommends that the State party, taking into account its general comments no. 4 (1991) on the right to adequate housing and no. 7 (1997) on forced evictions, increase its efforts to overcome the housing shortage and ensure that persons living in informal settlements are protected against forced evictions and enjoy access to basic services, such as water and sanitation. It also recommends that the State party take all necessary measures to further reduce poverty, paying special attention to disadvantaged and marginalized individuals and groups, including children, older persons and people living in rural areas. The Committee draws the State party’s attention to its Statement on Poverty and the International Covenant on Economic, Social and Cultural Rights (2001). para. 27. Ibid.: Living conditions in detention centres 28. The Committee expresses concern at substandard living conditions and excessive overcrowding in detention centres, including immigration detention centres. It is particularly concerned at reports that asylum-seekers, refugees and migrants suffer from malnutrition and lack of health care, as a result of lengthy and, in some cases, indefinite immigration detention (arts.2, 11 and 12). The Committee recommends that the State party:

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chapter 7 (a) Increase its efforts to remedy prison overcrowding, in particular by instituting alternatives to custodial sentences; (b) Ensure that asylum-seekers, refugees and migrants be detained only when absolutely necessary and that the time of detention is limited to a strict minimum; and (c) Ensure adequate living conditions in detention centres, provide adequate access to health care, including reproductive and sexual health, and combat malnutrition by increasing the resources allocated to this end, including through international cooperation and assistance. para. 28. Ibid.: Right to health 29. The Committee notes the achievement of the State party in implementing its universal health care scheme since 2002. However, the Committee is concerned that the scheme does not adequately cover disadvantaged and marginalized individuals and groups, including persons with disabilities and persons living in remote rural areas. It is further concerned that stateless persons, migrants, asylum-seekers and refugees still face obstacles in accessing basic health care services. The Committee is also concerned that the quality of health care is negatively affected by overcrowding in provincial hospitals, as recognized by the State party (art. 12). The Committee recommends that the State party intensify its efforts to address the remaining obstacles in access to the universal health care scheme, in particular for disadvantaged and marginalized individuals and groups, and ensure good quality health care. para. 29. Ibid.: 30. The Committee is concerned that the rate of teenage pregnancies and unsafe abortions is relatively high and adolescents have limited access to sexual and reproductive health education and services (art. 12). The Committee recommends that the State party take preventive measures to address the problem of the high rate of teenage pregnancies and unsafe abortions, strengthen its sexual and reproductive health education programmes which are ageappropriate for both boys and girls and ensure the accessibility, availability and affordability of sexual and reproductive health services. Pollution and health care 31. The Committee is concerned at shortcomings in the effective implementation of regulations on environmental quality and industrial activity to prevent harm (art. 12). The Committee reminds the State party of its obligations under article 12, paragraph 2 (b) of the Covenant and recommends that the State party take steps to comprehensively regulate environmental protection and ensure strict enforcement of its environmental legislation, so as to prevent harmful effects on health of the population. Access of drug users to health and treatment 32. The Committee is concerned that compulsory treatment and detention have adverse effects on the health of drug users, including increased infection of hiv/aids and hepatitis and their reluctance in seeking treatment (art. 12).

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The Committee recommends that the State party apply a human rights-based and evidence-informed approach to drug abuse, which should include preventive measures, harm-reduction programmes and provision of appropriate health care, psychological support and rehabilitation. paras. 30–32. Ibid.: 33. Right to education The Committee notes the adoption in 2009 of the 15-year free education programme for all. However, the Committee is concerned at the overall low quality of education, the significant upper secondary school dropout rates and remaining obstacles in access to education for certain groups, including children with disabilities, ethnic groups and children living in remote rural areas, as well as for stateless children, children of asylum-seekers, refugees and migrants. The Committee is also concerned that despite pilot projects being carried out, access to bi-lingual education for ethnic groups remains limited in the State party (arts. 13 and 14). The Committee recommends that the State party step up its efforts to ensure that all children under its jurisdiction effectively have access to free basic primary education. The State party should also address the causes for school dropout and improve the overall quality of education, including by ensuring that teachers are well-trained and fully qualified. Moreover, the Committee encourages the State party to increase its efforts to provide bi-lingual education from the early years and continue to facilitate, including through allocating necessary resources, community-­based education programmes in line with the cultures of ethnic groups. para. 33. Ibid.: 34. Situation in the southern border provinces The Committee expresses concern at the reports of attacks on teachers and schools, as well as medical personnel in the southern border provinces. It also notes the protracted state of emergency and is concerned at the negative effect it has on the full enjoyment of economic, social and cultural rights(arts. 12, 13 and 14). The Committee recommends that the State party take all necessary measures to ensure that the situation in the southern border provinces has no adverse effects on the enjoyment of the rights enshrined in the Covenant. In particular, it should ensure that schools, teachers and medical personnel are adequately protected from attacks and that everyone has access to education and adequate health services. para. 34. Ibid.: 35. Cultural rights The Committee is concerned at the adverse effect of the excessive interpretation of lèse majesté on the enjoyment of the right of everyone to take part in cultural life (arts. 4 and 15). The Committee draws the attention of the State party to its general comment no. 21 (2009) on the right of everyone to take part in cultural life and recommends that it amend its legislation with a view to ensuring clarity and unambiguity regarding the

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chapter 7 prohibited acts and that any sanctions are strictly proportionate to the harm caused. para. 35. Ibid., para. 36. Gender Equality Act 2015, Royal Gazette, Vol.132, Part 18 Kor (13 March B.E. 2558) (2015), pp. 17–27. (in Thai). mdgs:www.un.org/millenniumgoals/ and sdgs: https://sustainabledevelopment.un.org/ post2015. Act on Inheritance Tax B.E.2558, Royal Gazette, Vol. 132, Part 72 Kor (5 August B.E. 2558), pp. 1–11. (in Thai). General Comment No.7. See: www.ohchr.org.

chapter 8

The Convention on the Rights of Persons with Disabilities (crpd) and Thailand Introduction The crpd was finalised in 2007 and ratification by Thailand was relatively quick and easy, as seen below.1 The Convention tackles the issue of “disabilities” comprehensively, covering both physical and mental aspects, together with stipulations concerning rights. The crpd Committee is the monitoring body. It is complemented by a Protocol which opens the door to individual complaints where there are no national remedies.2 The substantive provisions of the Convention are summarized in Table 16. Importantly, Article 1 provides a comprehensive definition of “persons with disabilities” which covers both physical and mental aspects: “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” The definition is an open definition: it “includes” the above and States might expand it constructively.3 Article 2 then introduces various notions underpinning the Convention which advocate that facilities should be adapted to help persons with ­disabilities – “reasonable accommodation” and “universal design”: namely, “Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; “Universal design” means the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. “Universal design” shall not exclude assistive devices for particular groups of persons with disabilities where this is needed.4 The general principles are per Article 3: (a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;

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chapter 8 crpd: Summary of contents.

Article 1: purposes Article 2: definitions Article 3: general principles Article 4: general obligations Article 5: equality and non-discrimination Article 6: women with disabilities Article 7: children with disabilities Article 8: awareness raising Article 9: accessibility Article 10: right to life Article 11: situations of risk and humanitarian emergencies. Article 12: equal recognition before the law Article 13: access to justice Article 14: liberty and security of the person Article 15: freedom from torture and cruel, inhuman and degrading treatment. Article 16: freedom from exploitation, violence and abuse Article 17: protecting the integrity of the person. Article 18: liberty of movement and nationality Article 19: living independently and being included in the community. Article 20: personal mobility Article 21: freedom of expression and opinion, and access to information Article 22: right to privacy Article 23: respect for home and the family Article 24: education Article 25: health Article 26: habilitation and rehabilitation Article 27: work and employment. Article 28: adequate standard of living and social protection Article 29: participation in political and public life Article 30: participation in cultural life, recreation, leisure and sport Article 31: statistical and data collection Article 32: international cooperation Article 33: national implementation and monitoring Source: Author’s own table derived from OHCHR, The Core International Human Rights Treaties.

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(b) Non-discrimination; (c) Full and effective participation and inclusion in society; (d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; (e) Equality of opportunity; (f) Accessibility; (g) Equality between men and women; (h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.5 Article 4 stipulates obligations such as law reform, while Article 5 calls for ­prohibition of non-discrimination. There is focus on women and children in Articles 6 and 7, while Article 8 promotes awareness. Article 9 posits the notion of accessibility as follows: 1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers …6 Article 10 concerns the right to life, followed by Articles 11 and 12 on emergencies and equality before the law. Articles 13 and 14 advocate access to justice and security of the person, followed by Article 15 (anti torture), Article 16 (anti exploitation), Article 17 on protection of physical and mental integrity and ­Article 18 on liberty of movement and nationality, particularly “the right to acquire a nationality.” Article 19 makes provision for persons with disabilities to live in the community while also being independent, complemented by Article 20 and 21 on personal mobility and freedom of expression. Issues of privacy and respect for home and family are dealt with in Article 22 and 23, while education and health are underlined in Article 24 and 25. These are followed by guarantees of habilitation/rehabilitation, access to work, adequate standard of living and social protection, and participation in political and public life, and cultural life per Articles 26, 27, 28, 29 and 30. The importance of data is emphasized in Article 31, together with support from through international ­cooperation and national implementation per Article 32–33.

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Thailand ratified the Convention in 2008, with one reservation on the issue of nationality (Article 18).7 As there were already various laws on the books which corresponded to the provisions of the Convention, it did not need to go to Parliament for approval and ratification, despite the fact that the 2007 Constitution and its Article 190 applied. The initial report of the country was submitted to the un in 2012 and was published in 2015.8 A dialogue with the crpd is now awaited.

Reporting Process

Implementation Thailand’s initial report provides information per each article of the Convention sequentially. This is summarized below. 1. The main law on the subject which corresponds to Articles 1–4 of the ­Convention is the 2007 Persons with Disabilities Empowerment Act (complemented by various regulations integrating the principle of ­“reasonable accommodation” into Thai law): 1. The Persons with Disabilities Empowerment Act b.e. 2550 (2007) (pdea) is the 2nd national legislation on persons with disabilities, ­Section  4 thereof prescribing the definition of “persons with disabilities” as persons with activity limitations or social participation restrictions due to visual, hearing, mobility, communication, mental, emotional, behavioral, intellectual, learning disabilities or other impairments making them encounter various difficulties which lead to the need of s­ pecial aids to assist them in independent living particularly social participation as stipulated in regulations prescribed by the Ministry of Social Development and Human Security. Definitions of disabilities in pdea are consistent with those stipulated in the Convention on the Rights of Persons with Disabilities (the Convention). In addition pdea stipulates that a person with disability who requires special aids be certified by medical doctors. 3. The 2009 Ministerial Notification of the Ministry of Social Development and Human Security concerning Types of Disability and Its Criteria categorizes disabilities into 6 types: visual, hearing or communication, mobility or physical disability, mental or behavioral or autistic, intellectual and learning disabilities. In order to be entitled to all government provided services, persons with disabilities need to obtain a disability id card certified by physicians and issued by the National Office for Empowerment of Persons with Disabilities (nep).9 2. The Constitution guarantees non-discrimination congruent with Article 5, providing as follows:

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Article 5: Equality and non-discrimination 16. The right of persons with disabilities to access their equal benefits before and under the law is protected under provisions set forth in many sections of the 2007 Constitution of the Kingdom of Thailand as in S­ ection 4 concerning the protection of human dignity, rights, freedom and equality of people; Section 5 concerning equality of Thai citizens irrespective of their origin, sex or religion; Section 28 concerning that persons shall proclaim their human dignity, enjoy and exercise their rights and freedom within the scope of not violating the rights and freedom of others; Section 30 concerns any unfair discrimination against persons on grounds of disability shall be prohibited; Section 41 concerns the right of individuals in property and succession to estate; Section 81 concerns obligations of the State in protection of rights and freedom of individuals from violations by public officers and other parties; with all citizens provided justice on an equal basis.10 3. Article 6 underlines gender equality and is reflected in the national economic and social development plans.11 4. Article 7 concerning children invites early detection, access to special education and inclusive education. There is also a Child Protection Act 2003 which lays down stipulations for child protection such as non-­ discrimination and their best interests.12 5. Various activities on awareness raising help to promote Article 8’s call of dissemination.13 6. Bearing in mind the Convention’s call for “universal design” to harmonise the facilities to help persons with disabilities consistently with international standards, per Article 9, the accessibility issue has been responded to, for example, by means of ramps, Braille, and adapted facilities.14 7. Article 10 on the right to life is covered by the Constitution.15 8. Article 11 on response to national disaster is covered by the country’s disaster response plan.16 9. Articles 12–15 are covered by the Constitution and other laws/policies.17 10. Article 16 on protection from abuse is responded to – by the Domestic Violence Act as well as the law against human trafficking.18 11. Article 17 is reflected in the Constitution.19 12. Article 18 is also recognized by law, although at the time of ratification, there was a reservation entered to this Article (influenced by a similar reservation on the issue of nationality under the other treaties). There are implications for migration and nationality20 13. Measures to help persons with disabilities live independently and to help their inclusion in the community, such as via a monthly pension as well as improved access to information/technology, have responded to Article 19.21

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14. Various measures have been adopted to improve mobility under Article 20, such as with the help of technology.22 15. Articles 21–22 are respected locally through access to data while also promoting privacy. The country is drafting a personal information protection act to protect personal information.23 16. Respect for the home and family per Article 23 is reflected in laws such as the Child Protection Act.24 17. The right to education and inclusiveness are found in various laws and policies on education, including the Constitution and the National Education Act 1999.25 18. A variety of interventions offering universal health care, with provisions under a general scheme for all, civil service benefits, and social security for workers, respond to the health issue under Article 25 as follows: Article 25: Health 124. Thailand has established three main healthcare systems for all including persons with disabilities. These three systems are universal healthcare, social security, and medicare benefits and services for civil officers and their families. Health services for persons with disabilities include medical rehabilitation free of charge. 125. The 2007 National Health Act protects the rights of persons with disabilities, older persons, and vulnerable groups to receive necessary and specific medical services. This Act together with the 2008 Mental Health Act prohibits disclosure of personal health information unless it is a person’s preference or required by law. 126. The Ministry of Public health has issued the 2009 ministerial notification on Medical Rehabilitation and Cost of Treatments, Devices, and Assistive Technologies for persons with disabilities. The ministerial notification includes specific criteria and procedures for some services include dental, traditional and/or alternative medicine, and training on independent living skills. 127. In 2006, the National Health Security Commission promoted universal health care through its notification which supports, at the local level, municipalities or sub-district administration organizations. 128. The National Health Security Office, based on 2009 survey, provides budgetary support to cover 557,534 persons with disabilities under the care of government clinics, community health centers and hospitals.26 19. Per Article 26, various rehabilitation facilities are available.27 20. In relation to Article 27, there is promotion of access by persons with disabilities to jobs such as through employment quota.28

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21. There are special provisions to help persons with disabilities on the standard of living under Article 28, such as monthly disability pension.29 22. On the participation issue under Article 29, the report notes: Article 29: Participation in political and public life 169. Thailand has enacted legislation which establishes security for political and public life by participation of persons with disabilities where they shall enjoy their political rights on an equal basis with others, without discrimination on grounds of disability, as affirmed under Section 30 of the 2007 Constitution of the Kingdom of Thailand. 170. Concerning equality and non-discrimination, all rights entitled to the general public shall be entitled to persons with disabilities including their right to vote and be elected at national, regional and local levels. The Office of the Electoral Commission of Thailand provides facilities to ensure accessible voting with clear and usable election materials available. Electoral officers on duty at each electoral booth assist and facilitate voting by secret ballot for persons with disabilities. 171. Thailand has a high level of voting participation by persons with disabilities, as indicated by the 2007 National Statistical Office survey which shows 1,871,860 persons with disabilities participated. The ­National Economic and Social Development Board’s 2008 Report of the Situation of Persons with Disabilities shows that the majority of persons with disabilities pay high attention to exercising their political rights by participating in the voting process in elections at local, regional and national levels. 172. Thailand has enacted some laws which limit the political rights for classes of disability including mental, behavioral and autistic. Revision and modifications are needed to ensure full political rights and participation for all persons with disabilities, in compliance with Article 29 of crpd.30 23. There are also measures to enable participation in cultural life under ­Article 30.31 24. On Article 31–33, more cooperation, collection of data and improved monitoring, are being sought, such as with the help of the National ­Human Rights Commission.32

Key Challenges

Given that the monitoring committee has not yet considered the initial country report under the CRPD, it is perhaps premature to predict the committee’s

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analysis of the Thai situation. Yet, it can almost be prospected that some of the following issues will arise: Implementation Even prior to ratification by Thailand, various national laws, policies and programmes had responded to the Convention. The main law on the subject is the Empowerment of Persons with Disabilities Act which prohibits discrimination. Yet, there is an issue as to whether its definition of persons with disabilities is fully in conformity with that of the Convention. The latter underlines the need to overcome the barriers facing persons with disabilities. Moreover, the exception to the principle of non-discrimination stated in Section 15 paragraph 3, based on academic or traditional reasons and public interest is highly questionable, as per below: Section 15: Determination of policies, rules, regulations, measures, projects or practices of the governmental agencies, private entities or individuals that cause discrimination against persons with disabilities shall be prohibited. Discriminatory actions mentioned in Paragraph One include actions or omissions of any action, even though may not be deliberately intended to discriminate against persons with disabilities, that result in the loss of benefits or rights of persons with disabilities on the ground of their disabilities. Discriminatory actions with actions, traditional purposes or for public interests can be performed only when deemed necessary and on a case by case basis. Such measures are not considered as discriminatory and unjust as mentioned in Paragraph One and Paragraph Two. However, the persons in charge of such actions must have measures to assist, reconcile or to protect the rights or benefits of persons with disabilities according to their needs as and when possible.33 The Act also imposes fines thereon and obliges employers to take on at least one person with disability per 100 persons, failing which the employer has to pay a sum into a pool of national funds for persons with disabilities. It is open to debate whether this opt-out provision is a good quid pro quo. There is also a need to nurture a sense of empathy by means of more inclusive actions in all spheres of life, including in the educational process. Moreover, while the principle of “reasonable accommodation” is reflected in various regulations, it is not yet clear whether it constitutes a specific ground for action against discrimination.

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Reservation The reservation on the right to nationality was withdrawn in 2015. Yet, the issue of statelessness among some groups remains to be tackled, and policies to address the plight of persons seeking refuge or asylum in Thailand remain sensitive. The situation in regard to the latter has not been adequately analysed from the angle of persons with disabilities who might also be seeking protection in other countries. Discrimination: Cases While discrimination on the basis of disabilities is already banned under the Constitution as well as under the main national law referred to above, the real test has been to challenge age-old practices in key professions. Discrimination also rears its head in multiple forms. In this regard, there have been some catalytic cases testing the principle of non-discrimination. First, there is now case law which decided that the profession of prosecutors should be opened up to persons with disabilities.34 The law concerning this profession was amended accordingly.35Second, the courts initially decided that the judiciary was not discriminatory in having selection procedures per judicial regulations disadvantaging persons with disabilities.36However, in 2012, the issue was taken up again before the Constitutional Court of Thailand and the latter decided that the judicial regulations were not only discriminatory under the Thai Constitution and related law but also in breach of the Convention.37 This was a rare instance where the Court seemed to adopt a less dualistic view of international law integrating it almost directly into the national setting through proactive judicial reasoning. It referred directly to the crpd. Non-nationals/Migrant Workers In principle, the law does not discriminate against non-nationals with a disability. However, the test is often in regard to the rights of migrant workers; much depends on which category of migrant workers is involved. For instance, if the person is an expatriot with a disability, he or she is more likely to have easier access to employment and related guarantees in Thailand than a blue collar worker, especially if the latter is irregular. Mental Health There is still much stigma attached to persons with mental disability. There is a special law on this issue: Mental Health Act 2008, providing for a National Mental Health Board, with guarantees for patients’ rights.38 That law allows various anomalous practices such as electro-convulsive therapy, albeit with the consent of the patient. There is also a body to provide oversight and as a

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check and balance for the various guardians who come into play where a person has a mental disability, but there are questions concerning its effectiveness and whether guardians have too much power over the person needing protection and assistance. A key concern is to nurture a non-discriminatory mindset as well as special provisions for those in need. This should be supplemented by support for families so that care for persons with mental disabilities can be provided and incentivized at home. Access to Health Care This is dependent upon the three systems available in Thailand as noted in its report: the universal health care scheme, civil service provision and social security. The most precarious is perhaps in regard to those migrant workers who have a disability, especially if he/she is irregular. However, as noted in the context of the International Covenant on Economic, Social and Cultural Rights, migrant workers, irrespective of status, can buy a health insurance card to which provides them some coverage, without discrimination (at least, in principle). Accessibility, Reasonable Accommodation and Universal Design Although the principles mentioned are accepted in the national setting to some extent, such as through various regulations addressed to various sectors (for example, in the transport system), they need to be integrated more fully as transversal issues in an inter-sectoral setting. It is also the practice implementation which has to evolve responsively. Many facilities are still not ­disability-friendly – the classic case is the miles of shoddy pavements in Bangkok. The i­ ssue of access to public buses was recently a good test: the ­local authorities were p ­ roposing more elevators rather than buses without steps (“no-step buses”) so as to ease access to the transportation. The lobby of persons with disabilities preferred the latter and after much public debate, the authorities yielded to the latter. Of course, this does not detract from the fact that elevators are still very much needed particularly at national mass transport junctions to help persons with disabilities! This issue was taken up in the Administrative Court which, in another case, ordered the transport authorities to install more lifts at the mass transit stations.39 Business Sector Contribution In addition to the law on disabilities which covers employment generally, the role of the business sector in establishing good practice can also be contributive. Thus the Thai Labour Practice principles adopted by the business sector complement the laws and national policies on the subject.40 However, as already noted, the fact that employers can opt out of employing a person with

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disability by (instead) paying a sum into a fund for disabilities, may dilute the impact of the law in regard to non-discrimination in employment. Resources While some resources have been committed to help persons with disabilities through the national budget, there is room to do more. The current supplement for persons with disabilities (about 800 baht) remains low and should be augmented in the future.41 Participation While the initial country report above tries to convey the impression that there is a lot of participation by persons with disabilities, the realities may be more stark. For instance, there are few persons with disabilities in the top echelons of the political sector. Multiple discrimination and de facto discrimination may also lurk, while de jure discrimination was entrenched in some key professions till recently. This underlines the need for more inclusive actions in an interdisciplinary and cross-sectoral setting, and a recognition of the key contributions that persons with disabilities may offer to the community at large in a variety of fields. 1 The Convention has 50 Articles. It also has a Protocol opening the door to individual communications. Thailand is now considering ratification of the latter. For text, see: www .ohchr.org. 2 Ibid. 3 For a manual, see: Mariannne Schulze, Understanding the un Convention on the Rights of Persons with Disabilities (New York: Handicap International, 2010). 4 Supra note 1. 5 Ibid. 6 Ibid. 7 Similar to the reservations under the cedaw and crc. 8 Thailand’s initial report. un Doc. CRPD/C/THA/1 (January 2015). 9 Ibid., paras. 1–5: 4. For the purpose of providing education services for all children with disabilities, the Ministry of Education issued its 2009 Ministerial Notification on Categories and Criteria on Disability, classifying children with disabilities into 9 categories: children with visual impairment, hearing impairment, intellectual disability, physical, or mobility or health impairment, learning disability, specific language and speech impairments, behavioral or emotional disabilities, autism, and persons with multiple disabilities. 5. After Thailand ratified The Convention, Thailand observes the technical terms and definitions thereof, including the term “reasonable accommodation” that is to be properly applied and modified. One of the examples is almost all sub-district medical care centers in Thailand are designed in a 2-storey building model, where the 1st floor is an open area

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and the services are provided on the 2nd floor. The ground floor area is then adjusted to accommodate wheelchair users. paras. 4–5. See further: 6. For Thailand, persons with disabilities had been involved in drafting The Convention. As a result the Constitution of the Kingdom of Thailand b.e. 2550 (2007) is congruent with the said Convention. For example, Section 4 stipulates that human dignity, rights, freedom and equality of persons shall be protected; Section 5 stipulates that Thai citizens of either birth status, sex or religion shall be entitled to equal protection under the Constitution; Section 30 paragraph 2 prohibits any unfair discrimination against persons on grounds of birth status, race, language, sex, age, physical disability or health, personal status, economic or social status, religion/belief, education or political opinion which are not consistent with the Constitution. 7. Persons with Disabilities Empowerment Act (pdea) under Section 15 ensures that persons with disabilities fully enjoy equal fundamental human rights and freedoms, prohibiting unfair discrimination against persons with disabilities in the formulation of policies, rules, regulations, measures, projects or practices of public, private entities. Under Section 20 persons with disabilities have the right to access and utilize public facilities and services. Facilities and services include medical care, education, employment, disability allowance, sign language interpreters, personal assistants, home modification, information accessibility, and assistive technology. 8. Persons with disabilities and their caregivers shall be entitled to tax deduction or exemption as prescribed by law. 9. Any private entities that provide persons with disabilities with such benefits pursuant to this Section shall be entitled to tax deduction or exemption in percentage terms of their expenditure prescribed by law. 10. Thailand has enacted 20 statutes under pdea linked to regulations on the establishment of the Provincial Committees on Empowerment of Persons with Disabilities, administration of the Fund for Empowerment of Persons with Disabilities …., standards certification on organizations of and for persons with disabilities, criteria and procedures for filling complaints of unfair discrimination, and legal services. paras. 6–10. 10 Ibid., para. 16. 11 Ibid. Article 6: Women with disabilities 20. The Plan on Empowerment of Women ….. focuses on women in general, both with and without disabilities, with the objective to change negative attitudes towards women and to encourage gender equality, increasing women’s opportunity to be included in the decision-making process in political, economic and administration fields, health and hygiene, reproductive rights, and security in life. para. 20. 12 Ibid.: 22...... (c) Early detection and intervention from birth to pre-school for children with special needs is provided, including Ministry of Public Health focus on screening and treatment of children with disabilities. This service has become a most important task for specialists and parents. Thailand does not have a specific law related to early intervention; however, the Ministries of Education and Public Health continue to promote the

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development of early detection and early intervention. (d) With respect to education, the law prescribes that children with disabilities shall be entitled to access free education. The Act on National Child and Juvenile Development­ b.e. 2550 (2007), Section 6 (3) granting rights to children with disabilities, children with learning disability and gifted children to receive special education provided by the State to suit all levels of ability. (f) To ensure education is more accessible to children with disabilities, under compulsory primary education as prescribed by law, the Ministry of Education sets up a variety of educational programs for both public and private educational sectors, enabling students with disabilities to choose programs suited to their special needs. Programs supported by the government are inclusive education, special classrooms, special schools, home schools, vocational education and higher education cover pedagogic models, teachers, learners, materials or environments to facilitate inclusion of students with disabilities. In addition, college fees at higher education and vocational education are provided to persons with disabilities who seek Bachelor of Arts (ba) degree. (g) The Student Loan provided by the government for both male and female students, including students with disabilities, from lower income families enables them to continue their education from secondary to higher level. (h) The Child Protection Fund established by the Ministry of Social Development and Human Security since 2005 serves as an educational fund to support each individual poor child. (i) Thailand has 5 homes for children with disabilities nationwide under the supervision of the Ministry of Social Development and Human Security (msdhs) that perform their activities in supporting the basic necessities for life and standard rehabilitation and development of destitute children in all arenas by a multi-disciplinary group to provide holistic care. In addition, there are also some homes run by the private sector. (j) Provisions of the Child Protection Act b.e. 2546 (2004) which entered into force on March 30, 2004 set forth guidelines and approaches to development of children and juveniles properly and compatibly with current social trends to encourage the younger generation to take responsibility for the family, community, society and country. para. 22. Ibid., para. 26–29. Ibid.: 30. Prior to Thailand’s ratification of crpd, the Ministry of Interior issued its Ministerial Regulations of 2005 on provision of facilities in conformance with the Legislation on Prescribing Types and Aspect of Buildings Requiring Installation of Facilities Usable by Persons with Disabilities, such as hospitals, medical treatment institutions, public health service centers, medical care units, governmental office buildings, educational institutes, libraries and museums, mass transport stations, offices, theatres, hotels, auditoriums, stadiums, shopping centers, any kinds of department stores with any part of their buildings exceeding 2,000 square meters area open to the general public to access their services, and for internal facilities in buildings such as elevators or ramps, stairs, parking, toilets, a specified area for wheelchairs, switches, signals or noise alarms, Braille, surfaces, width of doors including the signs indicating facilities

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chapter 8 usable by persons with disabilities, symbols representing persons with disabilities, signs indicating the directions to facilities and symbols or print indicating types of facilities usable by persons with disabilities. 31. p dea under Section 20 entitles persons with disabilities to access and utilize public facilities and other aids rendered by the State on an equal basis with others, namely: (1) assistance to access public policies, plans, programs, activities, development and services and products; (2) access to data, information, news, communications, telecommunication services, information technologies, and communication technologies and facilities usable by all classes of disabilities, including public media provided by the public or the private sector subsidized by the government; (3) the right to take a guiding animal, equipment or devices or any auxiliary technologies with them on a vehicle or to a place for the purpose of guiding them to access public facilities with exemption from additional charge, fee or rent for such animal, equipment or auxiliary technologies; and (4) adjustments and modifications of housing environment. 32. Regarding legal measures on provision of transportation facilities pursuant to ­Section 37 of pdea involving the provision of facilities in land, sea and rail transportation, laws are in the process of being drafted. Namely the Department of Land Transport under the Ministry of Transport and Communications is drafting ministerial regulations to specify public transportation facilities for persons with disabilities, which the Department of Land Transport specifies as vehicle towing tools, ramps, bells, handrails and other facilities to ease access for persons with disabilities. The Ministerial Rules, Regulations and Notifications already in force are as follows: (a) The Ministerial Regulations Issue 5 enacted under the Act on Land Transport of 1979, prescribes that a vehicle which provides the general public with general service on a regular and continuing basis may have auxiliary devices to facilitate the convenience for persons with disabilities as follows: (i) firm, strong and safe door, ramp, bridge or other device to board or disembark persons with disabilities from the vehicle and with the quality as set forth or agreed by the ­Department of Land Transport; (ii) space or equipment to store a wheelchair with the firm and strong kit to hold the wheelchair to protect other passengers from danger; (iii) in case of any other equipment, it shall conform with those conditions set forth or agreed by the Department of Land Transport. The Notification of the Department of Land Transport on Prescription of the Fittings and Accessories Required to Be Installed in a Personal Car and Three-wheeler for Usability by Persons with Disabilities of 2009 dated March 4, 2009, namely: (i) door, ramp, bridge or other device to board or for persons with disabilities to disembark from the car; (ii) space or equipment to store a wheelchair; and (iii) fittings and accessories controlling the driving modified from function by feet to manual function. (b) The Ministry of Transport and Communications and its agencies including the Department of Land Transport jointly draft the Ministerial Regulations under pdea, with this draft in the process of revision, relating to where to specify ramps usable by persons with disabilities in the provincial transport offices in 20 provinces and in 5 mass transport stations. In addition, the said Ministry provides persons with disabilities with auxiliary technology equipment budgeted

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by the Fund for Traffic Safety, raised through bidding for favorite or preferable car registration numbers and allocating the money to the cost of the auxiliary technology equipment for persons with disabilities caused by traffic accidents. The fiscal year 2009 is the first year that this project was launched with 618 persons with disabilities accessing the said allocation of 35,948,640 Baht (USD32,000,000). (c) The Transport Company Ltd. allocates budgets to make alterations to the facilities in transport stations such as ramps, elevators, toilets, parking and other facilities usable by persons with disabilities, with officers on duty at administration centers where persons with disabilities can request assistance in all cases either purchase of tickets or assistance in boarding or disembarking from vehicles. (d) Bangkok Mass Transit Authority is in the process of procurement of 4,000 airconditioned buses … with facilities usable by all classes of disabilities. (e) The Mass Rapid Transit Authority of Thailand launches the project of extension of the rapid transit system cited as ‘the Blue Line and the Purple Line’ in universal design where persons with disabilities and all concerned can share their recommendations and suggestions in modifications to enable persons with disabilities who use wheelchairs to enter and exit the system in all directions, make ticketing areas accessible to and usable by persons with disabilities. Adjustment of the distance between passengers’ platforms and rail cars will be decided in conformance with the safety standard. (f) The Department of Highways standardizes the designs of highways accessible to and usable by persons with disabilities and older persons in conformance with the Ministerial Regulations on Facilities Fixed in Buildings That Are Usable by the Disabled/Physically Handicapped and the Elderly of 2005. Such project is ready for recommendation and suggestion by representatives of persons with disabilities in order to identify acceptable designs. In addition, there is a program to standardize designs of pedestrian bridges and elevators accessible to and usable by persons with disabilities and older persons. (g) The Department of Rural Roads launches significant projects, namely the project to build roads in the city/municipal zoning, footpaths in communities, a passage through a road within a bridge construction site in a community or region; to design a ramp or bridge connecting to a road in order to ease travel made by persons with disabilities and older persons. (h) The Expressway Authority of Thailand builds 2 public conveniences (wcs) usable by persons with disabilities and older persons in the Headquarters Building of the Chalerm Maha Nakhon Expressway (being in the process of construction and planned to be completed in January 2010), and in the Toll booth of Suksawat Expressway. paras. 30–32. Ibid., paras. 37–38. Ibid., paras. 39–42. Ibid., para. 43–64. Ibid., para. 65–68. Ibid., para. 69–70. Ibid., paras. 71–75.

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chapter 8 72. The issue of nationality in Thailand in governed by the Nationality Act of 1965 and Amendment No. 4 (2008), which is applicable to all persons, including persons with disabilities. In this regard, it should be noted that in 2010, Thailand announced the withdrawal of its reservation to Article 7 of the crc, which means that all children born in Thailand are now entitled to birth registration. With regard to long-term migrants and ethnic groups, they may be entitled to apply for Thai nationality or the status of legal immigrants in accordance with the rules prescribed by the nationality and immigration laws, as well as the Management Strategy on the Problem of Status and Rights of Persons, which cover 4 categories of persons, namely (1) those who have lived in Thailand consecutively for a long period; (2) those who have completed their undergraduate education in Thailand (prior to 18 January 2005); (3) rootless children who have lived in Thailand for more than 10 years; and (4) those whose actions have benefited the country. These categories of persons who were born in Thailand have the right to apply for Thai nationality in accordance with the Nationality Act of 1965 and Amendment No. 4 (2008). Those who were born outside of Thailand have to right to apply for the status of legal immigrants in accordance with the Immigration Act of 1979. These rules apply to all persons without discrimination on the ground of disability or on any other grounds. para. 72. Ibid. Article 19: Living independently and being included in the community 76. Thailand has taken steps to promote and develop the potential of persons with disabilities and protect their rights. pdea guarantees individual autonomy and independent status and situation such as providing a monthly disability pension. In this connection, the Local Administration Department under the Ministry of Interior approved budgetary allocation for local administration organizations to provide disability pensions at the community level. Local administration organizations support the representative organizations of persons with disabilities, non-profit organizations, clubs and associations to strengthen the potential of persons with disabilities, in job placement services with increased income and adjustment to their housing and public facilities to be accessible to and usable by persons with disabilities. 77. p dea contains significant provisions on independent living. Some examples include criteria for architectural barriers-free environment, accessible housing, personal assistants, assisting persons with disabilities who have no caregiver and the rights of caregivers. 78. To promote an inclusive society, Thailand through msdhs has introduced the implementation of community-based rehabilitation in many provinces. One positive outcome is evidenced by the improved situation where persons with disabilities in those communities, apart from receiving home care given by their family members, are now supported by the whole community. This program will be extended to other provinces by local administration organizations. 79. The Ministry of Information and Communication Technology established in all districts nationwide the community-based information-communication technology learning centers for general public. 227 ict learning centers have been established with an additional 600 centers to be completed by 2010. In addition, 120 of those centers are accessible for persons with disabilities. paras. 76–79.

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Ibid.: Article 20: Personal mobility 80. Thailand takes measures to produce local and assistive technologies accessible for person with disabilities. The country has been able to offer reasonably priced assistive technologies. Some of these measures are: (a) The National Electronics and Computer Technology Center …. the Office of National Telecommunications Commission…., Sirindhorn National Medical Rehabilitation Center in collaboration with schools of architecture of universities have carried out innovative and accessible assistive technologies research. (b) n ectec in collaboration with the Thai Industrial Standards Institute and ontc has developed and disseminated four standards: (1) Web Accessibility; (2) ­Digital Talking Book or Daisy Talking Book; (3) accessible ict equipment; and (4) Office equipment and supplies. (c) o ntc has developed standards of accessible telecommunication products, for mobile and fixed-line phones and the Internet, for persons with disabilities and older persons. 81. Thailand has taken steps to organize airline personnel training by providing assistance to persons with disabilities. For example, Thai Airways International … organizes­staff training to assist persons with disabilities while travelling. 2,000 of 4,000 staff have been trained and training continues throughout 2010. In addition, Airports of Thailand Plc. has provided an accessible parking area for taxi drop-off at the international airport. 82. Thailand supports agencies that produce assistive device equipment and accessible technologies for persons with disabilities to take into account all special needs of persons with disabilities as evidenced by existing laws, national plans, strategies and guidelines to promote independent living. 83. The Department of Land Transport has issued the 2009 Regulation on Criteria, Procedures and Terms of Payment for equipment to assist persons whose disabilities were due to traffic accidents, which include prostheses, wheelchairs, canes and ­walkers as well as other equipment deemed necessary. These expenses will be paid out from the Fund for Traffic Safety set up to assist persons with disabilities in a sum not exceeding 200,000 Baht (usd6,383) per person. 84. The National Health Security Office in collaboration with the Ministry of Public Health, Thailand Nursing and Midwifery Council, Ratchasuda College and Thailand Association of the Blind launched the White Cane Project with the aim to train 80,000 persons with visual impairments nationwide on how to use white canes to enable them to live independently. The project is for a 5 year term, with a pilot project commencing in the fiscal year 2010 (October 2009), aiming to be fully operational in fiscal year 2011. Total budget for this project is approximately 770 million Baht (usd 25 million). Currently, 15% of persons with visual impairments, out of the total number of close to 80,000 persons, have completed training on the use of white canes. Implementation of this program shall ensure better access of persons with visual impairments to public facilities and help enhance their social participation. paras. 80–84. Ibid., paras. 85–94.

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chapter 8 Ibid., paras. 95–101. Ibid.: Article 24: Education 102. The present situation of persons with disabilities regarding their education, based on the survey carried out by the National Statistical Office in 2007 indicated many encountered a number of difficulties and required assistance to support their educational access. Among the population of persons with disabilities aged 5 years and over (1.9 million persons), one fourth were uneducated (uneducated persons with disabilities 453,130) from a total uneducated populations of 2.98 million, and of the more than half (59.57%) who completed kindergarten, only 16.2% completed primary and secondary education, with only 1% graduating from university with Bachelor’s degree. 103. Regarding the protection of educational rights for persons with disabilities in Thailand, there are laws prescribing service guidelines and policies on education as follows: (1) The 2007 Constitution of the Kingdom of Thailand contains provisions affirming the protection of the education rights of persons with disabilities, where Section  49 stipulates that persons with disabilities have access to education free of charge of not less than twelve years on an equal basis with others. (2) p dea under Section 20 (3) entitles persons with disabilities to access assistive technologies and other additional services. (3) The 1999 National Education Act, Section  10 stipulates equal educational rights for all to basic education. In addition, early intervention services have been provided through provincial special education centers throughout the country for children with disabilities from birth and their families. (3.1) Section  18 includes education services at all levels provided by other agencies such as specific learning centers, home schools and pre-­ vocational centers organized by foundations and families for persons with disabilities. (3.2) Section 37 stipulates that the Ministry of Education shall support educational districts in all provinces to provide basic education to persons with disabilities. (3.3) Persons with disabilities receiving non-formal or alternative education are entitled to assistive technologies and other services provided through the 2007 Ministerial Regulations on Criteria and Procedures under Entitling Persons with Disabilities to Facilities, Auxiliary Technologies and Other Educational Assistance. (4) Education Act for Persons with Disabilities …. stipulates persons with disabilities have the right to education from birth free of charge. They are entitled to assistive technologies, special materials, and other services based on their special needs as specified in their individualized education programs ….. Persons with disabilities are able to make educational choices according to their interests, preferences, proficiencies, and abilities. Educational institutes develop ieps for students with disabilities. 104. All public and private educational institutions providing education to persons with disabilities are entitled to financial and professional support. All these educational

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institutions in addition shall provide barriers-free environments. In case any educational institute refuses the admission of persons with disabilities without any justified reason or cause as prescribed under the criteria and procedures issued by the Office of Basic Education Commission …., such action shall be considered an act of discrimination. 105. Educational institutes are expected to accommodate students with special needs in curriculum development, examination, evaluations, and learning under criteria and procedures determined by the Office of Basic Education Commission. Educational institutes may apply for funding from the Ministry of Education through Educational Fund for Persons with Disabilities. paras. 102–105. Ibid., paras. 124–133. Ibid., paras. 134–148. Ibid., paras. 149–62; 152. p dea under Section 20 entitles persons with disabilities to vocational rehabilitation which includes standard services, labor protection, measures of employment promotion and self-employment, media, facilities, technologies and any other assistance to support work and occupations of persons with disabilities according to the regulations, procedures, and conditions prescribed by the Minister of Labor Section. Section 33 prescribes employers, entrepreneurs, and government agencies shall employ persons with disabilities to work in positions suitable for them in proper proportions to the entire number of the employees in their workplaces. 153. Regarding the effective measures taken to ensure their opportunity of employment in the labor market, the most recent resolutions adopted by the Cabinet on June 22, 2010, resolved to adjust the ratio of employment of persons with disabilities in the business and public sectors from the previous 200:1 to 100:1 and to prepare for adjustments and modifications of workplace and transport to facilitate accessibility for persons with disabilities. The Cabinet’s resolutions adopted on May 19, 2009 prescribed the establishment of basic facilities accessible for persons with disabilities be accomplished by 2011, for public agencies to develop an employment plan of persons with disabilities and connect the database of persons with disabilities nationwide, as well as to establish 8 vocational training centers to conduct vocational training for 1,000 persons with disabilities each year. 154. Persons with disabilities have access to a wide scope of self-employment training courses. The Department of Skill Development under the Ministry of Labor supports persons with disabilities to access inclusive comprehensive training courses towards employment rehabilitation at both provincial and regional level. paras. 152–154. Ibid.: Adequate standard of living and social protection 163. The 2007 Constitution of the Kingdom of Thailand, under Section 80 (1) prescribes that the government provide support and welfare for persons with disabilities to ensure their well-being and autonomy. The Department of Social Development and Welfare under msdhs has accordingly set up social welfare support systems in several fields for all classes of disability from birth. 164. To ensure lifetime security for persons with disabilities, on reaching retirement age persons with disabilities are entitled to an old-age pension in addition to the disability pension.

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chapter 8 165. p dea, under Section 20 (9) stipulates the government shall provide a monthly disability allowance for all registered persons with disabilities. As at February 2010 the registered number of persons with disabilities receiving the monthly disability allowance totaled 1,235,378 persons. paras. 163–165. Ibid., paras. 169–172. Ibid., paras. 173–176. Ibid., paras. 177–189. Persons with Disabilities Empowerment Act (pdea) 2007. English text from the Ministry of Social Development and Human Security. Case where the Constitutional Court found that the law concerning prosecutors which excluded persons with disabilities from becoming prosecutors was unconstitutional: Constitutional Court, Ruling 44/2545, Siriwimon Boonmun v Attorney General concerning the Act relating to Officials of the Attorney General’s Office b.e. 2521, Article 33(11), Royal Gazette, Vol. 120, Part 54 Kor (13 June b.e. 2546), pp. 1–7 (in Thai). Legal reform concerning prosecutors. Act relating to Officials of the Attorney General’s Office b.e. 2553, Royal Gazette, Vol. 127 Part 75 Kor (7 December b.e. 2553), pp. 1–37 (in Thai). The Constitutional Court found in an earlier case that the judicial regulations under the Law concerning Officials of the Court which excluded persons with disabilities from becoming a judge were not unconstitutional, Constitutional Court Ruling 16/2545, Royal Gazette, vol. 119 Part 124 kor (20 December b.e. 2545), pp. 160–165 (in Thai). Later, the Constitutional court case changed its position influenced by the provision of the 2007 Constitutional (article 30) which prohibited discrimination in relation to disabilities and the ratification of the crpd and it found in 2012 that the judicial regulations which excluded persons with disabilities were unconstitutional: Constitutional Court Ruling 15/2555, re Sirimit Bunmun, Royal Gazette, Vol. 129 Part 100 Kor (18 October b.e. 2555), pp. 94–101 (in Thai). Mental Health Act b.e. 2551 (2008), Royal Gazette, Vol. 125 Part 36 Kor (20 February b.e. 2551), pp. 37–60 (in Thai). A group of persons with disabilities sued Bangkok Metropolitan Administration (bma) and Bangkok Transit System (bts) for not providing facilities at all its sky train stations in Bangkok. The Central Administrative Court dismissed the case in 2012, but in January 2015, the Supreme Administrative Court decided to instructed bma and bts to install lifts in 23 sky train stations and seats on the train for persons with disabilities within a year: Court.admincout,go,th [Online access],Judgement of the Supreme Administrative Court, http://court.admincourt.go.th/ordered/Attach/57_pdf/1-2-57-650.pdf (accessed 22 October 2015). This is encouraged as part of Good Labour Practice Programmes, Thailand. The State subsidy for a person with disability is about 800 hundred baht (about 30 baht to usd) per Cabinet decision of 2015.

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The International Convention for the Protection of All Persons from Enforced Disappearance (ced) and Thailand Introduction The Convention against enforced disappearances was finalised by the un in 2006.1 It defines the phenomenon of enforced disappearance as an illegality and calls for criminalization of the practice. The Convention has some 25 substantive articles, with the other later articles being concerned with procedural matters. The substance of the ced is seen in Table 17: Table 17

ced: Summary of contents.

Article 1: prohibition (of enforced disappearance) without exception Article 2: definition Article 3: State’s obligation to investigate Article 4: criminalization Article 5: crime against humanity Article 6: complicity Article 7: penalties Article 8: statute of limitations Article 9: jurisdiction Article 10: inquiry Article 11: obligation to prosecute or extradite Article 12: individual’s complaint(s) Article 13: non-political offence Article 14: mutual legal assistance Article 15: victim assistance Article 16: non-refoulement Article 17: no secret detention Article 18: access by relatives/lawyers Article 19: privacy Article 20: judicial remedy © faculty of law, chulalongkorn university, 2017 | doi 10.1163/9789004326675_010

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chapter 9 ced: Summary of contents (cont.).

Article 21: release of person deprived of liberty Article 22: sanctions Article 23: training Article 24: right to the truth Article 25: wrongful removal of children Source: Author’s own table derived from OHCHR, The Core International Human Rights Treaties.

Importantly, by Article 1, the right not to be subjected to enforced disappearance is absolute. Article 2 then offers a definition of “enforced disappearance”: namely arrest, abduction or any form of deprivation of liberty by state officials or their protégés, “followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which places such a person outside the protection of the law.” Article 3 imposes an obligation of State party to investigate of enforced disappearances, while Article 4 calls for criminalization of the practice. Article 5 then opens the door to classifying widespread or systematic practice of enforced disappearance as a crime against humanity. Criminal responsibility is stipulated in Article 6 for accomplices and for superior(s) who knew or consciously disregarded information involving subordinates, exercised effective responsibility for and control over activities linked with the crime, and failed to take measures. Article 7 advocates appropriate penalties against the practice. Article 8 deals with the statute of limitations; the term of limitations for criminal proceedings (prescription period) should commence from the moment when the offence of enforced disappearance ceases, taking into account its continuous nature. Jurisdiction should be exercised by a State party when the alleged offender is present in any territory under its jurisdiction, unless there is extradition to another state or referral to an international criminal tribunal, as per Article 9. Article 10 provides for an inquiry to establish the facts where person alleged to have committed the offence is present in the territory of the State, while per Article 11: there is an obligation by the State where the person alleged to have committed the offence is found – to prosecute unless the person is extradited. By Article 12, individuals have the right to demand an investigation where he/she alleges that a person has been subjected to enforced disappearance to report the fact to the authorities, and the State is obliged to undertake

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an investigation without delay. Article 13 establishes that the practice of enforced disappearance cannot be regarded as a political offence, with Articles 14 and 15 covering mutual legal assistance and assistance for the victims. Non-­ refoulement or no return to another State where there is a danger of the person being subjected to enforced disappearances is reiterated by Article 16, while Article 17 prohibits secret detention. Access by relatives or legal representatives to information concerning persons deprived of liberty is stipulated by Article 18, while protection of personal information and the right to prompt and effective judicial remedy are guaranteed under Articles 19 and 20 respectively. The call for reliable verification necessary in the case of release of person deprived of liberty is bolstered by Article 21, while Article 22 provides for sanctions against obstructions concerning remedies. Training for law enforcers to prevent violations is voiced by Article 23, while Article 24 underlines the victim’s right to know the truth and to obtain reparation. There is then a specific provision concerning children: Article 25 advocates prevention and punishment of wrongful removal of children who are subjected to enforced disappearance or children whose parent(s) is subjected to the practice. The remaining articles concern the setting up of and functioning of the Committee on Enforced Disappearances, state reports, and the possibility of communications by another State party or individuals. An innovative angle of the Convention is that under Article 30, a request to find a disappeared person may be submitted by a relative or legal representative of the person and interim measures may be granted by the Committee to locate and protect the person. The ced was signed by Thailand on 9 January 2012.2 It remains to be seen when the country will ratify it. En passant, the issue of enforced disappearances is already raised to some extent under other treaties to which Thailand is a party, such as the cat, and through the un Special Procedures particularly the Working Group on Enforced Disappearances. The value added of the ced is to provide even more focus for action and related monitoring, transparency and accountability. Situation In recent years, the issue has been most connected with the impact of enforced disappearances on human rights defenders. The most famous case concerns a Thai Muslim human rights lawyer, Somchai Neelapaichit, who was apprehended by law enforcers and then became a victim of the practice.3 He was also the

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lawyer of various Muslims who had allegedly been abused by the authorities. His remains have not been found. The case was taken up by one of the un Special Procedures, the Working Group on Enforced Disappearances, as above and remains unsettled. At the national level, the case was taken to court and at first instance, one middle rank official was found to be guilty. However, on appeal, the person disappeared and the Court of Appeal overturned the case. Building on the finding of the Court of Appeal, the Supreme Court in December 2015 rendered its judgement and did not punish any officials in this regard, thus acquitting five officials originally accused of the crime.4 There have been other cases paralleling the above: a recent case concerns “Billy,” a leader of an ethnic group and a human rights defender working with communities against forced eviction.5 He became the victim of alleged enforced disappearance just before Thailand’s dialogue with the cat committee above. He has not been found. Part of the problem rests with the fact that under the criminal law, the crime of enforced disappearances is not clearly stipulated in Thai law, and this is a lacuna when compared to the stipulations of Article 1–3 of the ced. Tangentially, various local laws may already pertain to the issue under the heading of coercion. They currently include the following, although responding only partly the scope of the ced: 1.

On the need for criminalization under Article 4 of the ced, the nearest provisions under the Criminal Code are Section 309 and 310: Responsibility for coercion with violence and deprivation of liberty: “Section 309 of the Criminal Code: Whoever, compels the other person to do or not to do any act, or to suffer any thing by putting him in fear of injury to life, body, liberty, reputation or property of him or another person, or commits violence so that he does or does not do such act, or suffers such thing, shall be punished with imprisonment not exceeding three years or fined not exceeding six thousand Baht, or both. If the offence according to the first paragraph be committed by ma king use of arms or by five persons upwards participating, or it be committed in order that the compelled person shall execute, revoke, damage or destroy any document of right, the offender shall be punished with imprisonment not exceeding five years or fined not exceeding ten thousand Baht, or both. If the offence be committed by alluding to the power of the secret society or criminal association, whether it be existent or not, the offender shall be punished with imprisonment of one to seven years and fined of two thousand to fourteen thousand Baht.

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Section 310. Whoever, detains or confines the other person, or by any other means whatever, deprives such person of the liberty of person, shall be punished with imprisonment not exceeding three years or fined not exceeding six thousand Baht, or both. If the commission of the offence according to the first paragraph causes death or grievous bodily harm to the person detained, confined or deprived of the liberty of person, the offender shall be punished as provided in Section  290, Section  297 or Section 298. Section 310. bis Whoever, detaining or confining the other person or making in any manner to deprive other person without liberty bodily and making such other person to do any act for the doer or other person, shall be imprisoned not out of five years or fined not out of ten thousand Baht.”6 2. With regard to complicity and responsibility per Article 6 of the ced, the nearest provisions in Thai law are: Section 83 of the Thai Criminal Code: “In case of any offence is accrued by commission of the person as from two persons upwards, such accomplices deemed to be principals shall be punished as provided by the law for such offence.”7 Section 84 of the Thai Criminal Code: “Whoever, whether by employment, compulsion, threat, hire, asking as favor or instigation, or by any other means, causes another person to commit any offence is said to be an instigator. If the employed person commits the offence, the instigator shall receive the punishment as principal. If the offence is not committed, whether it be that the employed person does not consent to commit, or has not yet committed, or on account of any ether reason, the instigator shall be liable to only one-third of the punishment provided for such offence.”8 See also Sections 85 and 86 of the Thai Criminal Code.9 3. With regard to the statute of limitations/prescription period under Article 8 of ced, Section 95 of the Thai Criminal Code stipulates 10 years concerning offences under the above sections. 4. With regard to the possible exercise of universal jurisdiction stated in Article 9 of the ced, there is no parallel in Thai law whose jurisdiction is based on nationality and territoriality. Although Section 4 and 8 of the Thai Criminal Code cover the misdeeds of Thais and those who injure Thai nationals, they do not confer universal jurisdiction. 5. In principle, the Thai Criminal Code responds to the call for criminal Proceedings against those responsible: per Article 11 of the ced. 6. Witness protection under Article 12 of the ced is reflected in the Thai Witness Protection Act (b.e. 2546), especially Section 3 and 6.

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Concerning extradition: Article 13 of the ced, there are corresponding provisions in Thai extradition law, particularly the Extradition Act (b.e. 2551), Section 7. Legal cooperation under Article 14 of the ced is paralleled by the Thai Legal Cooperation in Criminal Matters Act (b.e. 2535). Measures against secret detention per Article 17 of the ced are advocated by the 2007 The Constitution: Section 32(3), 87 and 89. Access to the courts to complain as per Article 17 of the ced is guaranteed by the Constitution: Section 32 and 90. Access to families and lawyers foreseen by Article 18, 19, and 20 of the ced is found to some extent in Thai law but there are key limitations where emergency laws such as the Martial Law Act and the Emergency Decree are used such as in Southern Thailand. Criminal Procedure Code: Section 44(1) corresponds to Article 24 of the ced on reparation. Child Abduction per Article 25 of the ced is prohibited under the Criminal Code: Section 317 and 264.

In reality, the authorities tend to pursue such cases on the basis of coercion with violence (assault or bodily harm), per the sections of the Criminal Code in the listing above, but the authorities underline that the body has to be found.10 Moreover, in Thailand, as seen in the listing above, the period for the statute of limitations in criminal proceedings is ten years and it is triggered at the time of the incident of disappearance(s), contrary to the international position that regards enforced disappearances as a continuous offence and that the prescription period does not start till the whereabouts of the person are known. Given that the Convention has impact on substantive and procedural law in Thailand, requiring law reform, it will need to be ratified by Parliament. It is open to debate whether there should be a single new law to implement the Convention or whether existing laws such as the Criminal Code and Procedure Code should be adjusted in regard to some of their provisions. Currently, there is a draft law to adjust the local law and integrate both the concept of torture and enforced disappearances concurrently into national law.11 The draft also introduces the notion of universal jurisdiction into Thai law.

Key Challenges

The practice of enforced disappearance is not new to Thailand (as well as many other countries). While it is reprehensible that people are enforcibly disappeared, the surrounding circumstances should not be overlooked, possibly

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interlinking the victim with other victims of human rights violations. Insidious considerations may be at play to silence the victim: the person is victimized because he or she is also targeted for helping other victims expose the wrongdoings of various powers-that-be. Thus, there may be an attempt to undermine justice in a broader sense, related to a number of cases and situations, not simply and not solely the case of that enforced disappearance. Accession/Implementation Given that Thailand has already signed the Convention, pending accession, there is applicable to the country the general principle of pacta sunt servanda whereby the country needs to act in good faith not to undermine the Convention.12 As noted earlier, there is now also pending a draft law to criminalise both torture and enforced disappearance in one text instead of two texts. While this may be a constructive beginning, the Convention itself is rather detailed and would need to be reflected at the national level through a comprehensive law/ laws, policies and practices which encompass the full scope of the crime of enforced disappearance and its ramifications. As importantly, it is the effective implementation which matters substantively in real terms. Pending accession, it is important to try and use whatever existing laws available to counter the practice. Of particular relevance is various provisions of the Criminal Code which need to be applied and interpreted constructively. There is a need to move away from the condition that the body must be found so as to be able to initiate criminal proceedings. The message of the Convention is that the crime of enforced disappearance is not necessarily about finding the body but about the fact that officials or their protégés abuse their positions and hide the misdeed, the deprivation of liberty and or the whereabouts of the person. Law/Policy/Practice Together with the need for a clear law on the subject, there is also a need for a clear policy from the top that the practice of enforced disappearance is not permitted and is a crime.13 Thus law enforcers should be instructed that there can be no shortcuts in their investigations which could lead to enforced disappearance. In the past, it was known that the authorities had various lists of suspects who might be targeted for extra-judicial operations and sanctions. These practices need to be countered by a clear prohibition among the authorities and their juniors, coupled with effective behavioural training, as well as action against impunity as discussed below. Human Rights Defenders Human right defenders constitute a marked proportion of the persons who are enforcibly disappeared. There is thus the need to nurture respect of these

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defenders by the authorities in keeping with international standards.14 The country has already been visited (once) by the un Special Representative on Human Rights Defenders who years ago, warned of transgressions against human rights defenders.15 The various committees under the human rights Conventions covered by this book also raise as a key issue the protection of human rights defenders.16 Investigations/Prosecution As the Somchai case shows, investigations and prosecutions face an uphill struggle, especially where collusive elements may penetrate the law enforcement system.17 Proceedings might be slow or be blocked, or as in the Somchai case, odd circumstances arise during the course of judicial proceedings which subvert the quest of justice. To some extent, there has been a shift in the country towards more specialized law enforcement personnel and agency, such as the Department of Special Investigations. There is also some witness protection offered as part of the package. However, several cases remain unsolved and unresolved.18 Thus, where there is no local remedy, it is important that there is access to some international avenues to pressure for transparency. Impunity/Accountability One of the recurrent challenges facing the country is the pervasive impunity when faced with key human rights violations. This is obfuscated further by corruption and negative political influences which exert pressure on the law enforcement process. On the one hand, internal disciplinary measures against the wrongdoers can assist in the transparency process, but generally, the statistics are not made public. On the other hand, the pursuit of justice through the courts of law where there are allegations against officials, especially those of quite high rank and upwards, has always been difficult in the country. Where an official is found to have committed a misdeed, he/she is usually moved to another location rather than prosecuted and sanctioned against. The situation has not been helped by the tendency to employ self amnesty decrees in the country where there is a change of power through use of force. Remedies From the angle of the victim and his/her family, a key consideration in the quest for remedies is the right to the truth. This is certainly a struggle when faced with the scenario of power and vested interests. Furthermore, there are difficulties in pursuing court cases. While the country does have a law and a fund to help victims of miscarriage of justice, the sums paid to the victims and relatives are only a component of a more comprehensive set of remedies needed and recognized internationally, including reparation, r­estitution,

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­ on-repetition of the offence and an apology.19 Witness protection for famin lies which initiate cases against law enforcers is also a challenge.20 While changes of address and identity are possible options, the number of officials available to help such families remains limited. Inevitably, the remedies themselves are often too little too late, while the preferred strategy should be that of prevention – to preempt arbitrary measures by public officials in their various incarnations. 1

The Convention has 45 Articles and there is no Protocol. The Convention has provisions on individual communications. See also: www.ohchr.org. 2 Thai signature. 2012. 3 ICJ.org [Internet Hompage], International Commission of Jurists, Thiland: a report on the criminal trial and investigation of the enforced disappearance of the Thai human rights lawyer, Somchai Neelapaichit, http://icj.wpengine.netdna-cdn.com/wp-content/ uploads/2012/09/Thailand-criminal-trial-disappearance-Neelapaichit-trial-obervationreport-2009-eng.pdf, March 2009, (accessed 6 November 2015). 4 For the latest judgement – Supreme Court – in December 2015, see:www.nationmultimedia.com/…/Top-Thai-court-upholds-acquittal-of-lawyer-abducti-30275857.html (accessed 24 January 2016). 5 Ex-park chief cleared again in Billy case, http://www.bangkokpost.com/archive/ex-parkchief-cleared-again-in-billy-case/678720, 3 September 2015 (accessed 6 November 2015). 6 Thailandlawonline.com [Internet Homepage], Thai Criminal Code b.e. 2499, http:// www.thailandlawonline.com/laws-in-thailand/thailand-criminal-law-text-translation (accessed 4 November 2015). 7 Ibid. 8 Ibid. 9 Ibid. 10 Thailand Criminal Procedure Code. Section 129 In the event that the death is a consequence of the commission of an offence, an inquiry, including inquest pursuant to the provisions of the present Code concerning inquest, shall be held in respect of such death. In so far as the inquest is not yet completed, no charge may be entered against the accused in court. 11 new draft: Draft Act to Prevent and Suppress Torture and Enforced Disappearance (RANG PRARAJABANYAT PONGKAN LAE PRABPRAM KARN TORAMARN LAE KARN BANGKUP BUKKOL HAI SOONHAI POR SOR…) (Bangkok: Ministry of Justice, no date)(in Thai). 12 Pacta sunt servanda as a principle of international law is also found in the 1969 Vienna Convention on the Law of Treaties referred to in Chapter 1 of this book. 13 National Human Rights Action Plan (Bangkok: Ministry of Justice, 2014). 14 1998 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms. 15 Hina Jilani, special rapporteur, Promotion and Protection of Human Rights: Human Rights Defenders. u.n. Doc. E/CN.4/2004/94/Add.1 (March 2004).

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16 e.g. cat, cerd. 17 Somchai case, supra note 3 and 4. 18 https://www.hrw.org/…/thailand-still-no-justice-disappearance-victims (accessed 24 January 2016). 19 Law on victims’ compensation: Act on the Compensation of Victims and Reparation for the Defendant in Criminal Cases b.e. 2544, Royal Gazette, Vol. 118, Part 104 Kor (12 November b.e. 2544), pp. 23–32 (in Thai). 20 Act on the Protection of Witnesses b.e. 2546, Royal Gazette, Vol. 120, Part 58 Kor (20 June b.e. 2546), pp. 4–12 (in Thai).

chapter 10

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (cmw) and Thailand Introduction The migrant workers’ Convention was finalized by the un in 1990.1 Basically, it covers those workers who cross borders to undertake employment. A number of rights pertain to all workers whether or not they enter a country legally (e.g.  right to life, freedom from torture, access to justice). Those with documents (namely, those entering the country legally) are guaranteed additional rights (such as the right to freedom of association and freedom of movement). The Convention has some 90 articles, with some 70 Articles on substantive rights. The provisions of the Convention are found in Tables 18–20 below. Given the long list of Articles in the Convention, the Articles are summarized and divided into these 3 tables, concentrating on substantive rights: Table 18

cmw: Summary of contents (General provisions).

Article 1: the application of the Convention to all migrant workers without distinction Article 2: various definitions, including “migrant worker” as “a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national” Article 3: non-application of the Convention in regard to some groups, such as employees of international organizations Article 4: definition of “members of the family,” including persons married to migrant workers or having a relationship with them, as well as dependent children Article 5: such workers and members of their families are considered as documented or in a regular situation if they are authorized to enter, to stay and to engage in a remunerated activity in the State of employment; those not complying are regarded as undocumented or in an irregular situation. Article 6: meaning of State of origin, State of employment and State of transit Article 7: non-discrimination with respect to rights

© faculty of law, chulalongkorn university, 2017 | doi 10.1163/9789004326675_011

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chapter 10 cmw: Summary of contents (General provisions) (cont.).

Articles 8–35: guarantee for the human rights of all migrant workers and members of their families (whether or not they are documented) Articles 36–56: (additional) rights of documented workers and their families Articles 57–63: particular categories of migrant workers and members of their families Articles 64–71: promotion of humane conditions Source: Author’s own table derived from OHCHR, The Core International Human Rights Treaties. Table 19

cmw: Rights of all migrant workers (whether or not documented) and families: Articles 8–35: Part iii.

Article 8: freedom to leave any State, including State of origin, and to re-enter the State of origin Article 9: protection by law Article 10: prohibition of torture, cruel, inhuman and degrading treatment Article 11: prohibition of slavery and forced labour Article 12: freedom of thought, conscience and religion Article 13: freedom of expression Article 14: right to privacy Article 15: no arbitrary deprival of property Article 16: right to liberty and security of the person Article 17: right to humane treatment where deprived of liberty Article 18: right to equality before the courts Article 19: no retroactive criminal law  Article 20: no imprisonment for failure to fulfil contractual obligation Article 21: no unlawful confiscation of documents Article 22: prohibition of collective expulsion Article 23: right to consular protection Article 24: recognition as a person before the law Article 25: no less favourable treatment than nationals of the State in relation to remuneration Article 26: right to join trade unions Article 27: national treatment in regard to social security Article 28: national treatment in regard to right to receive medical care Article 29: child of migrant worker’s right to a name, to birth registration and to a nationality Article 30: child’s access to education on basis of national treatment Article 31: respect for their cultural identity

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Article 32: right to transfer savings Article 33: right to information concerning their rights. Article 34: obligation of migrant workers and their families to comply with local laws Article 35: this part of the Convention does not imply regularization of persons who are undocumented or in an irregular situation. Source: Author’s own table derived from OHCHR, The Core International ­H uman Rights Treaties. Table 20

cmw: Rights of documented migrant workers and families: Articles 36–56: Part iv.

Article 36: guarantee of rights in Part iii and as well as in this Part Article 37: right to be informed of conditions of admission into the State of employment before departure from State of origin Article 38: State of employment to allow temporary absence without effect on their authorization to stay or work Article 39: right of liberty of movement in State of employment Article 40: right to form associations and trade unions Article 41: right to participate in public affairs Article 42: right to establish procedures and institutions for the special needs of migrant workers and families Article 43: national treatment concerning access to education Article 44: family unity Article 45: families of migrant workers’ right to access education on basis of national treatment Article 46: exemption from import and export duties for household effects Article 47: right to transfer earnings Article 48: right not to be liable to taxes other than those applicable to nationals Article 49: States of employment to issue authorization of residence for at least the same period as the authorization to engage in remunerated activity Article 50: in case of death of migrant worker, State of employment shall favourably consider granting the family members an authorization to stay. Article 51: migrant workers who in the State of employment are not permitted freely to choose their remunerated activity shall not be regarded as in an irregular situation. Article 52: right to freely choose their remunerated activity Article 53: members of a migrant worker’s family who have authorization of residence shall be permitted freely to choose their remunerated activity. Article 54: national protection in case of protection against dismissal and unemployment benefits

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chapter 10 cmw: Rights of documented migrant workers and families (cont.)

Article 55: equality of treatment with nationals in respect of remunerated activity Article 56: no expulsion except for reasons defined in the national legislation Source: Author’s own table derived from OHCHR, The Core International Human Rights Treaties.

Incidentally, Part v pertains to particularly categories of migrant workers such as frontier workers, seasonal workers, and itinerant workers and self employed workers. Part vi expands the need for humane conditions of work and measures to counter clandestine movements. Part vii concerns the setting up of the monitoring Committee, state reports and the system of communications from another State party and from individuals. Situation For Thailand, the process of acceding to this Convention has been the slowest in regard to the 9 core human rights treaties. While the Thai authorities are in the process of considering ratification/accession to this Convention, there seems to be an attitude, on the part of some, that engagement with the Convention is the remit of the Ministry of Foreign Affairs rather than that of the Ministry of Labour. Logically, of course, the Convention is inevitably linked with the latter also. Despite this, labour rights under the international framework are already covered to some extent by ilo Conventions and Thailand is a party to ILO Conventions as in Table 21, with the Ministry of Labour as the key catalyst in the ratification/accession process.2 Thus, in principle, at least some international labour standards are binding on Thailand and are implemented through these treaties accordingly. At this juncture, even when the country has not yet signed the 1990 Convention, it is worth comparing the national situation with the Convention to see whether they are convergent or divergent. Generally, there is a shortage of labour, compounded by the fact that Thailand is faced with an ageing society. Thus for the past decade and more, there have been large influxes of migrant workers, particularly from Myanmar, Laos and Cambodia into Thailand. Meanwhile, Thai workers have also exited to work in other countries – initially, the Middle East, and more recently East Asia.3 Interestingly, youth unemployment is very low in the country.4

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ilo conventions to which Thailand is a party.

Convention No.80 concerning the Partial Revision Convention 1946 (ratified 1947) Convention No.14 concerning the Application of the Weekly Rest in Industrial Undertaking 1921 (ratified 1968) Convention No.19 concerning Equality of Treatment for National and Foreign Workers as regards Workmen’s Compensation for Accidents 1925 (ratified 1968) Convention No.29 concerning Forced or Compulsory Labour 1930 (ratified 1969) Convention No.88 concerning the Organization of the Employment Service 1948 (ratified 1969). Convention No.100 concerning Equal Remuneration 1951 (ratified 1999) Convention No.104 concerning the Abolition of Penal Sanctions for Breaches of Contract of Employment by Indigenous Workers 1955 (ratified 1964) Convention No.105 concerning the Abolition of Forced Labour 1957 (ratified 1967). Convention No.116 concerning the Final Articles (Revision) 1961 (ratified 1962). Convention No.122 concerning Employment Policy 1964 (ratified 1969). Convention No.123 concerning the Minimum Age for Admission to Employment Underground in Mines 1965 (ratified 1968, and now superseded by later Conventions) Convention No.127 concerning the Maximum Permissible Weight to be carried by One Worker 1967 (ratified 1968) Convention No. 182 concerning the Worst Forms of Child Labour 1999 (ratified 2001) Convention No.138 concerning Minimum Age for Admission to Employment 1973 (ratified 2004). Convention No.159 concerning Vocational Rehabilitation and Employment (Disabled Persons) 1983 (ratified 2007) Source: ministry of labour, thailand and ilo, 2015.

Complications concerning the situation surround particularly the issue of incoming migrant workers. While many of these workers are documented as below, others are undocumented or in an irregular position. Lately, there has also been much exposure of human trafficking and smuggling which intermixes migration with crime and corruption.5

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With regard to documented workers, the rights guaranteed in Thai law are similar to those of the Convention, with some key exceptions. In principle, the Labour Protection Act 1998 as amended provides for protection at work for Thai and non-Thais, whether or not they are documented.6 The rights include humane treatment, access to courts, remuneration (equal pay), decent work conditions, and special protection for women and children. As below, through the issuance of subsequent regulations, there have been some exceptions, however. The difference between the rights of nationals and non-nationals also lies in the scope and application of the Labour Relations Act 1975 which sets conditions for the formation of trade unions and the right to strike.7 While non-nationals can join trade unions, they are not allowed to form trade unions nor allowed to sit on the board thereof. Moreover, while the State Enterprise Labour Relations Act 2000 allows workers of State enterprises to form trade unions, they are not allowed to strike.8 In general, migrant workers from other countries need to seek a work permit to undertake employment in Thailand and the law generally applying is the Working of Aliens Act 2008.9 Various occupations are also excluded to migrant workers/foreign workers.10 However, with regard to migrant workers from the three countries mentioned, there is a special policy to enable them to enter the country en masse. The country has introduced a registration process particularly for migrant workers from Myanmar, Cambodia and Laos under various Memoranda of Understanding (mous).11 The applicants need to verify their nationality and register with the Thai authorities for a work permit. This is subject to the demand for labour in Thailand as a kind of quota system. Until recently, the work permit was valid for two years, renewable once. However, upon expiry, the worker had to leave the country and stay away from the country for a certain period before possibly applying again. By the end of 2015, some 1.7 million workers from the neighbouring countries had been registered.12 A recurrent challenge has been the fate of undocumented, unregistered or irregular workers who might also be easy prey for third parties seeking to exploit them. With regard to undocumented workers, do they enjoy some protection? The country guarantees some rights, e.g. the right to life, access to courts, equal pay and humane treatment paralleling the 1990 Convention, under the Labour Protection Act. Equal pay under the that law, as well as the other guarantee, is part of the law irrespective of immigration status. However, other rights, such as freedom of movement and association, are not guaranteed to undocumented workers; precisely because they are, in principle, illegal immigrants under the national immigration law, there is the impending threat of arrest and deportation.

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In reality, as undocumented workers would be afraid of coming out into the open, it would be difficult for them to claim their rights, such as to access the courts to claim their monthly pay, even though the latter is guaranteed by the Labour Protection Act. The same limitations per the Labour Relations Act and State Enterprises Act above apply in regard to the formation of unions and the right to strike.13 Underlying the hesitation towards undocumented workers is that they are seen as being in the country in breach of the immigration, with an illegal status negativing their rights. Thai law and practice attenuates the plight faced by undocumented workers and their families in three respects. First, the national birth registration law covers everyone irrespective of immigration status; all persons born in Thailand must be registered and have a 13 digit number.14 Second, the national education law guarantees basic primary education for all (9 years), even for stateless persons.15 Third, even though undocumented workers do not have the labour registration card and status offered to those registering under the mous, they can buy a health insurance card which enables them to access basic health care, irrespective of immigration status. In addition, hospitals also have a degree of discretion to help persons in need of medical treatment, irrespective of immigration status.16 A good example of how patients have been helped on this basis is that persons needing medical coverage for hiv/aids cases are given medicine sponsored by the Global Health Fund through the Thai medical authorities without discrimination. Three situations deserve further deliberation: victims of trafficking, domestic service and workers in the fishing industry. Human trafficking is a serious phenomenon with national and transnational implications. Migrant workers, among others, have been affected, especially where they seek to leave the country of origin clandestinely. Thai laws offer protection to some extent, although law enforcement has been subject to much criticism. The main law on the subject is the Human Trafficking Act, amended in 2008, criminalizing the wrongdoers and imposing severe penalties on traffickers.17 The victims are supposed to be shifted to welfare centres (and should not be kept in immigration jail), and their return to their homesteads should be based on safety. The law has been complemented by various mous nationally to enable victims to be assisted by governmental and non-governmental organizations, and mous with neighbouring countries establishing procedures to ensure safety of return. This is complemented by a policy to allow victims of trafficking to undertake work, with a kind of temporary visa granted to them. Yet, a major issue is that the number of prosecutions of the traffickers remains low. Law enforcers may also feel that it is easier to use other laws, such as the Criminal Code or the Anti-prostitution law to apprehend the wrongdoers, rather than resort to the

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anti-trafficking law directly given the rather cumbersome definition of human trafficking under the latter law. With regard to domestic workers, while originally the Labour Protection Act could have applied to them, there was an official regulation from the outset excluding them from the protection accorded by that law.18 This situation was rectified recently by Labour Ministry Regulation No.14 when the rights under the said law were restored on some fronts. Thus, they are now entitled to protection against abuse and exploitation, remuneration, humane work conditions and holidays. However, the minimum pay provision of Thai law is still inapplicable. With reference to the fishing industry, again while the Labour Protection Law could have applied to all fishermen, the employees/crew of small fishing boats were excluded from the protection of the law – by means of a subsequent regulation: Labour Ministry Announcement No.10. The situation improved at the end of 2014 when that regulation was cancelled.19 Persons under 18 years of age are now not allowed to serve on fishing boats. There must be written contracts with basic wages and other guarantees for the fishermen and humane working conditions. In 2015 the protection was further invigorated by the new Fisheries Act obliging fishing boats to be registered with the authorities, and subjected to a monitoring and surveillance system, to help eliminate abuses.20

Key Challenges

The labour situation involves huge numbers of persons and has far reaching consequences. It has become even more sensitive with the possibility of threats of sanctions from other regions in regard to the treatment of migrant workers in Thailand. A number of issues of immediate relevance are addressed below. Ratification/Accession Given that the trend for Thailand is to at least consider ratification of all core human rights treaties, it is all the more necessary to invite accelerated consideration of this Convention. This goes hand in hand with the ilo Conventions, including the scores of other ilo Conventions that Thailand has not yet ratified. Yet, normative commitment also needs to be complemented by effective implementation in the national and local settings. Given that the 1990 Convention is already flexible in stipulating the variety of rights, differing between those of documented and undocumented migrant workers, it is to be hoped that no reservations or declarations will be needed.

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Law, Policy and Practice In essence, the labour protection legislation as above was initiated on the premise of guarantees for all workers without discrimination. Yet, their scope was constrained by other regulations, establishing exceptions and excluded groups; increasingly, these are being revoked. The challenge now is to extend the scope of protection to cover all groups without discrimination. Action against Abuse, Exploitation, Trafficking and Smuggling This invites a variety of measures, including more effective law enforcement. The transnational implications of abuses invite broader cooperation. One recent example is The Bangkok agreement reached at the end of May 2015 on irregular migration in the Indian Ocean; it has some elements worth underlining including, more search and rescue operations; predictable disembarkation options and reception; access by the un High Commissioner for Refugees (unhcr) and International Organization for Migration (iom) to the migrants; effective screening processes and protection of vulnerable groups; sharing of information and intelligence; and resource mobilization.21 Another emphasis is also needed: no push backs to areas of dangers, and treatment of the migrants in dignity and safety. Special Protection for Women and Children There is a need to underline gender and child sensibility with special procedures and provisions. Clearly, the supports need to be multi-sectoral and multi-agency, with access to facilities which afford protection, quick victim identification, expedited process of interviews and avoidance of re-traumatization. Undocumented Workers It is important to emphasise that human rights pertain to all, irrespective of whether a person is documented or not. The basic threshold offered by the 1990 Convention is for all workers, including undocumented workers, and this encompasses the right to life, freedom from torture and slavery, humane treatment, equal pay and access to justice; this provides the preferred groundwork for national law, policy and practice on labour issues. It also invites good management of labour-related movements while guaranteeing basic protection as the key minimum to be respected and guaranteed for all workers without distinction. Tripartite System: Government, Workers and Employers Finally, it is salutary to remind oneself that the international labour system is age old and is premised on cooperation between three components/ stakeholders of tripartism. As a counterpart to the Government, the role of

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employees and trade unions is essential; yet, throughout the years, the trade union movement in Thailand has been beset by diffidence, if not hesitation from the authorities. It should not be forgotten that in the authoritarian periods after the Second World War, there was a tendency to weaken rather than strengthen the movement in this country. There is also the fact that Socialism was looked upon with reticence, and that Communism was for many years illegal, even though this is no longer the case. On another front, given that employers and the business sector are a key part of the process, enabling them to help promote and protect human rights is essential. This can be done through legislation and softer approaches such as commitment from the industry through guidelines and self regulation. The business sector in Thailand has already committed itself to preferred labour practices such as through the Thai Labour Practice Code, and this can help to combat malpractices such as the use of underaged child labour and other forms of exploitation. The panorama calls for analysis and scrutiny of the type and scale of industry involved. While small scale industries are increasingly being promoted as part of income generation and access to local communities, their geographic spread also makes it difficult to monitor and regulate them to comply with labour laws. While more inspectors may also be necessary for law enforcement, the involvement of local people and vigilant neighbourhoods, not forgetting the key role of ngos and civil society, in promoting respect for labour law is equally important. Thus the need for more incentives and graduated pressure for compliance with labour standards whether the industry is small scale, medium or large scale, and all the more so where they have transnational reach and implications. 1 The Convention has 93 Articles and there is no Protocol. The Convention has provisions on individual communications. It should be noted that the country is already a member of the ilo and is a party to over a dozen ilo treaties. For instance, Conventions such as ilo Convention No.122 on employment policy provide an opportunity to raise and advocate the rights of all migrant workers. 2 In regard to the influx of migrant workers from neighbouring countries, their treatment has been shaped very much by mous with those countries and the stipulation of nationality verification. It should not be forgotten also that there are large numbers of Thai migrant workers in other countries who need protection and assistance. Thus the value of acceding to the 1990 Convention is to establish an international bridge to protect all migrant workers without discrimination. Humane treatment should also be accorded to undocumented workers in regard to basic protection and access to essential services. 3 Re Migrant flows into Thailand and out of Thailand: Jerrold W. Huguet [editor], Thailand Migration report 2014, Bangkok, United Nations Thematic Working Group on Migration in Thailand, b.e. 2557 (a.d. 2014), pp. 1–7.

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9 10 11 12 13 14 15 16 17 18 19 20 21

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International Labour Organization, Thailand – A labour market profile, Bangkok, ilo Regional office for Asia and the Pacific, b.e. 2556 (a.d. 2013), pp. 36–37. A major issue is the protection of not only regular/documented but also irregular/ undocumented migrant workers. Labour protection law protects all workers but there have been some regulations excluding application of this law to some groups, e.g. fishermen, domestics. The latter are now covered increasingly by the labour protection. See various developments concerning the Labour Protection Act b.e. 2541, Royal Gazette, Vol. 115, Part 8 Kor (20 Febuary b.e. 2541), pp. 1–44; b.e. 2551, Royal Gazette Vol. 125, Part 39 Kor (27 Febuary b.e. 2551), pp. 4–17; b.e. 2551, Royal Gazette, Vol. 125, Part 39 Kor (27 Febuary b.e. 2551), pp. 18–23 (in Thai). Labour relations law issue: migrant workers not yet able to form trade unions: Labour relations Act b.e. 2518, Royal Gazette, Vol. 82 (special) Part 47 (26 February b.e. 2518), pp. 1–80; b.e. 2534, Royal Gazette, Vol. 108 (special) Part 69 (18 April b.e. 2534), pp. 25–27 (in Thai). State enterprise law problem: state enterprises cannot strike: Act on Employees of State Enterprises b.e. 2534, Royal Gazette, Vol. 108 (special) Part 69 (18 April 2534), pp. 1–11; b.e. 2543, Royal Gazette, Vol. 117 Part 31 Kor (7 April b.e. 2543), pp. 1–24. (in Thai). Working of Aliens Act b.e. 2551, Royal Gazette, Vol. 125 Part 37 Kor (22 February b.e. 2551), pp. 24–43 (in Thai). Act concerning the occupations of foreigners b.e. 2542, Royal Gazette, Vol. 116 Part 123 Kor (4 December b.e. 2542), pp. 1–15 (in Thai). Vitit Muntarbhorn, The Mekong Challenge: Employment Protection for Migrant Workers in Thailand: National Laws/Practices versus International Standards? (Bangkok: ilo, 2005). www.mmtimes.com/…/12680-govt-to-conduct-census-of-migrant-workers.html (acces­ sed 24 January 2016). Labour relations Act and State Enterprises Act, supra notes 7 and 8. birth registration law: www.unicef.org/thailand/protection_14929.html (accessed 24 January 2016). education law: www.unicef.org/thailand/education.html (accessed 24 January 2016). health law: www.thailawforum.com/laws/National%20Health%20Act_2007.pdf (acces­ sed 24 January 2016). anti-human trafficking law: www.thailawforum.com/…/thailand-anti-human-trafficking -act.html (accessed 24 January 2016). domestic worker’s law: www.tilleke.com/…/new-labor-regulation-provides-protectionsdomestic-workers (accessed 24 January 2016). Labour regulations concerning labour in fisheries b.e. 2557, Royal Gazette, Vol. 131 Part 88 Kor (30 December b.e. 2557) (2014), pp. 95–99 (in Thai). Fisheries Act (2015), Royal Gazette, Vol.132 Part 34 Kor (28 April b.e. 2558) (2015), pp. 1–26 (in Thai). www.mfa.go.th/…/56880-Summary-Special-Meeting-on-Irregular-Migration-in.html (accessed 24 January 2016).

chapter 11

Orientations This study has endeavoured to provide an analysis of Thailand’s relationship with the 9 core human rights treaties through the eyes of linkage with the country situation, the reporting process, recommendations from the various human rights committees concerned, and key challenges for follow-up implementation. While the country has performed well in regard to socio-economiccultural rights, such as anti-poverty action, universal health care and a liberal policy towards health services in relation to hiv/aids, the most traumatic challenge is in relation to intrusive impediments undermining civil-political rights which are intrinsically linked with democratic aspirations and the international Rule of Law. In retrospect, the value added of being a party to international treaties on this front is that it has helped to raise standards, e.g. reform of the old law which had permitted the death penalty for children (persons under 18 years of age) to establish the current position abolishing this penalty in regard to children, pursuant to the crc. Many reforms have thus been initiated or taken place due to the influence of the treaties. The treaties also help to expose the various deficits pervading the national scenario. Another key value added is that the treaties themselves involve a process of making public the national situation, thus exposing both the strengths and weaknesses in a framework of transparency. This lends itself to a process of advocacy, analysis, assessment and drive for improvements at the national level based on objective standards. At the practical level of involvement of the various stakeholders in the country in the treaty-linked process, the reporting process per treaty compels the various ministries and their partners to come together and take stock of the situation to prepare the national reports, engage with the international monitoring committees and take the recommendations therefrom back to the locality for follow up. This complements the normative angle of the treaties with the process of engagement and cooperation/coordination at the national level. In effect, the treaties are a mobilizing tool for change. The process has evolved with more members of civil society and ngos preparing their parallel reports to be sent to the committees to help assess the information provided in the country reports. Thus, the participation element whether from the government side, the non-governmental side, and or even the inter-­governmental side, provides fertile ground for discourse and cross-checking through a ­multitude of stakeholders and processes. © faculty of law, chulalongkorn university, 2017 | doi 10.1163/9789004326675_012

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Of course, it is not a perfect system. For instance, in the country reports, there has been a tendency to put (too) much emphasis on “having a law,” while implementation of human rights depends much more than upon a law or the law. The gaps in the rather lengthy cycle of reporting under each treaty also means that there are long spells and intermissions before the various committees can vet the record of the country again. Equally challenging is the fact that the concluding observations or recommendations from the monitoring committees are persuasive but not binding (at least, not binding in the sense of giving rise to sanctions if they are not followed). At times, the State authorities may be paying lip service to them, if at all. From a transversal angle of dealing with all the treaties and their cross-links, the fact that there are so many reports to be prepared for the treaties can also be burdensome and costly for the State. Many of the questions asked by the treaty bodies and the ensuing recommendations are similar and repetitive. Also the country’s responses are similar and repetitive! However, there is a key point to be made that each treaty provides the specific vetting needed in relation to the issues under each treaty, and even if there is some repetition in the reporting process, it is worth the trouble, as the messages should resonate and be invoked consistently to press for follow up. En passant, it may be noted that when measured internationally in terms of cost and time spent on the reporting and monitoring process under the treaties, there is a continuing debate concerning how to make the system of all the treaties more cost effective, more efficient and more results-oriented. In reality, it should not pass unnoticed that the relationship between a country and the treaties depends upon a consensual relationship without which the treaty itself is not binding on the country concerned. This consent-based element suffers from the disadvantage that unless the country has signed up to the treaty, no reporting or monitoring can take place under the treaty. Thus, in terms of human rights promotion and protection, it is necessary to look further to ensure that there is no vacuum particularly in addressing situations of ­vulnerability, impelled by the belief that there should be “no protection gap.” The orientations below enrich the possibilities to overcome the lacunae which may affect the current scenario, while reinforcing the preferred practices which may also be witnessed in the country in respective areas.

Comprehensive Approach

The international human rights protection system does not only consist of the core human rights treaties but also the Universal Periodic Review (upr) and the Special Procedures System of the un. The value added of using the upr is

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that it does not depend on a particular human rights treaty but is part and parcel of the un’s jurisdiction to encompass all countries in terms of human rights discourse and monitoring.1 The upr is a modulated process of interactive dialogue and engagement with the country. To date, all countries have been vetted by the upr through the un Human Rights Council. Thailand has been through this once and is now preparing for the second round. Yet, the upr is a soft process without the harder edge of critical analysis provided by the core human rights treaties, their monitoring committees and the subsequent recommendations requiring follow up. Countries can also reject recommendations from the upr and the rejections often cloak key transgressions. With regard to the Special Procedures, the variety of Special Rapporteurs and Working Groups act independently and scrutinize all countries under their particular mandates without the need for consent by a country subjected to assessment.2 A value added is that victims can complain to the concerned Special Procedure even where local remedies have not been exhausted. However, there may be less of a buy-in from countries in relation to follow-up of their recommendations, precisely because the work of the Special Procedures is not consensual – at least, not consensual from the angle of the State being reviewed, where that State rejects the Special Procedure concerned. In the meantime, the core human rights treaties give rise to detailed periodic review of the record of States parties, with a range of key suggestions to implement at the national level, but the exercise depends on the consent of the State to agree to be part of the treaty. The message from the above is that a comprehensive approach invites use of all the modalities available, given that each has a value added as well as constraints.

Intersectionality: National, Regional and International

Of course, the primary responsibility for human rights protection rests with the State. However, what is to be done where there are failings? In many regions of the globe, there are regional human rights protection systems such as regional treaties, commissions and courts which can take up cases where the local remedies in the country concerned have been exhausted. Is there such system nearby? In the Association of South-east Asian Nations (asean) region to which Thailand belongs, there is a nascent system but it is geared to promotion rather than protection of human rights and it does not yet provide regional remedies. While there is now an asean human rights commission and an asean Human Rights Declaration, they do not yet offer

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regional remedies where the state is unable or unwilling to act.3 There is also no regional court. Thus it is important to look beyond that regional setting – particularly to the international human rights framework to ensure that there is no protection gap, especially where the national setting is amiss. Substantively, the options available for cases from Thailand are currently either at the national level or the international level, pending a more mature regional system. This is why it is important to enhance the intersectionality of the national-regional-international and to use well the international human rights system, in particular the human rights treaties to which Thailand is a party. In 2015 the adoption of the Sustainable Development Goals by the global community – in which Thailand’s leadership participated- opened the door for further impetus to propel human rights in the national setting intersecting with the international framework.4 Interestingly, out of the 17 goals and 169 targets adopted, several are linked with human rights and set a time frame for attainment in the next 15 years (2030), following the Millennium Development Goals which began in 2000 and which reached their final stage in 2015. Of note is that Goal 1 calls for poverty eradication, while Goal 8 calls for compliance with international labour standards and eradication of child labour and Goal 16 promises commitment to freedoms, including through applying the relevant international agreements. Tables 22–25 highlight the Goals and targets interrelated with human rights: Table 22

Sustainable development goals (sdgs).

Goal 1 End poverty in all its forms everywhere Goal 2 End hunger, achieve food security and improved nutrition and promote sustainable agriculture Goal 3 Ensure healthy lives and promote well-being for all at all ages Goal 4 Ensure inclusive and equitable quality education and promote lifelong learning opportunities for all Goal 5 Achieve gender equality and empower all women and girls Goal 6 Ensure availability and sustainable management of water and sanitation for all Goal 7 Ensure access to affordable, reliable, sustainable and modern energy for all Goal 8 Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all

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chapter 11 Sustainable development goals (sdgs) (cont.)

Goal 9 Build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation Goal 10 Reduce inequality within and among countries Goal 11 Make cities and human settlements inclusive, safe, resilient and sustainable Goal 12 Ensure sustainable consumption and production patterns Goal 13 Take urgent action to combat climate change and its impacts Goal 14 Conserve and sustainably use the oceans, seas and marine resources for sustainable development Goal 15 Protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation and halt biodiversity loss Goal 16 Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels Goal 17 Strengthen the means of implementation and revitalize the global partnership for sustainable development Source: Author’s own table derived from SDGs: www.un.org. Table 23

Targets impliedly linked with human rights under sdgs.

Goal 1. End pov1.1 By 2030, eradicate extreme poverty for all people erty in all its forms everywhere, currently measured as people living on less everywhere than $1.25 a day 1.2 By 2030, reduce at least by half the proportion of men, women and children of all ages living in poverty in all its dimensions according to national definitions 1.3 Implement nationally appropriate social protection systems and measures for all, including floors, and by 2030 achieve substantial coverage of the poor and the vulnerable 1.4 By 2030, ensure that all men and women, in particular the poor and the vulnerable, have equal rights to economic resources, as well as access to basic services, ownership and control over land and other forms of property, inheritance, natural resources, appropriate new technology and financial services, including microfinance

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1.5 By 2030, build the resilience of the poor and those in vulnerable situations and reduce their exposure and vulnerability to climate-related extreme events and other economic, social and environmental shocks and disasters 1.a Ensure significant mobilization of resources from a variety of sources, including through enhanced development cooperation, in order to provide adequate and predictable means for developing countries, in particular least developed countries, to implement programmes and policies to end poverty in all its dimensions 1.b Create sound policy frameworks at the national, regional and international levels, based on pro-poor and gender-sensitive development strategies, to support accelerated investment in poverty eradication actions Source: Author’s own table derived from SDGs: www.un.org.

Table 24

Targets impliedly linked with human rights under sdgs.

Goal 8. Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all

8.5 By 2030, achieve full and productive employment and decent work for all women and men, including for young people and persons with disabilities, and equal pay for work of equal value 8.7 Take immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms 8.8 Protect labour rights and promote safe and secure working environments for all workers, including migrant workers, in particular women migrants, and those in precarious employment

Source: Author’s own table derived from SDGs: www.un.org.

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chapter 11 Targets impliedly linked with human rights under sdgs.

Goal 16. Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels

16.1 Significantly reduce all forms of violence and related death rates everywhere 16.2 End abuse, exploitation, trafficking and all forms of violence against and torture of children 16.3 Promote the rule of law at the national and international levels and ensure equal access to justice for all 16.4 By 2030, significantly reduce illicit financial and arms flows, strengthen the recovery and return of stolen assets and combat all forms of organized crime 16.5 Substantially reduce corruption and bribery in all their forms 16.6 Develop effective, accountable and transparent institutions at all levels 16.7 Ensure responsive, inclusive, participatory and representative decision-making at all levels 16.8 Broaden and strengthen the participation of developing countries in the institutions of global governance 16.9 By 2030, provide legal identity for all, including birth registration 16.10 Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements 16.a Strengthen relevant national institutions, including through international cooperation, for building capacity at all levels, in particular in developing countries, to prevent violence and combat terrorism and crime 16.b Promote and enforce non-­discriminatory laws and policies for sustainable development

Source: Author’s own table derived from SDGs: www.un.org.

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These are new opportunities to encourage more human rights protection within a specific timeframe.

Responsibility and Accountability

As surveyed in the previous chapters, human rights violations often arise because of action or omission on the part of the authorities or their agents. The most egregious violations need to be countered by criminal law and sanctions. Yet, as seen in many instances discussed under the treaties, there is impunity among officialdom without redress for the survivors and victims. A pertinent consideration is whether and when the country will ratify the Rome Statute of the International Criminal Court. The country signed the Statute a while ago.5 This would help to raise standards at the national level, such as to introduce, among others, the notion of crimes against humanity into national laws and policies, and integrate the notion of responsibility and accountability into the national setting. While some may fear the Court’s jurisdiction, they can also be assured that only very serious cases will have access to the Court. This is due to the balance offered by the Rome Statute based on the principle of complementarity; where national mechanisms are able and willing to act, the Court will not entertain cases. The hesitant approach adopted to date by the authorities should not foreclose the possibility of the country becoming a member of the Statute, bearing in mind the value added that it offers to entrench international criminal law into the national process. Having said that, the responsibility of non-State actors should also not be overlooked, particularly in the spread of extremism worldwide, bearing in mind the need for prevention through more social cohesion and other action.

Effective Implementation

Looking back, there are already many law and policies which can help to promote and protect human rights in the country in keeping with international standards. The challenge often relates to the need for more effective implementation and the interface with the political scenario and the quest for democratic space. This requires cross-sectoral cooperation with a variety of interdisciplinary measures ranging from human rights sensitive laws to policies, programmes, case enforcement, mechanisms, personnel, resources, information and monitoring, education and capacity building, provision of remedies, and a participatory process with channels for reform, coupled with

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broad ­networking and mobilization among civil society. No less critical is the question of leadership and the political will to respect the will of the majority, while not forgetting the interests of the minority in a peaceful discourse. Learning from the country’s linkage with the core human rights treaties, some of the messages to be conveyed now and for the future include the following: – Ratification: There is a need for comprehensive ratification of all the core treaties and their protocols, coupled with implementation. However, to be fair, it can also be voiced that even without ratification, national laws, policies and practices can help much to comply with international standards if there is the political and social will to abide by those standards; – Reception/Integration: Though the Thai system is dualistic, there are ways to receive/integrate these treaties into the domestic system, albeit indirectly such as through the courts. The courts should also be encouraged to cite treaties to “be inspired by them” and to help implement and raise standards, coupled with related education and training of judges (from the early stages of joining the judiciary) to be sensitized to human rights and international standards; – Declarations/Reservations: There is a need to avoid making these conditions as well as to commit to their withdrawal. Pending withdrawal, the provisions conflicting with international standards should not be implemented; – Gender: There is call to entrench gender issues as cross-cutting and to building a sense of understanding per international standards, coupled with social mobilisation to effect attitudinal and behavioural changes; – Non-discrimination and Non-Thais: Again this is a transversal issue and is anchored on the principle of non-discrimination which is at the heart of human rights. Those with a nationalistic streak should also be assured that the rights advocated according to international standards are the basic minimum and not the basic maximum, and there is rational thinking behind this. For instance, international law does not compel States to guarantee the right to vote to non-nationals, while it does guarantee the right to life for all persons; – Vulnerability: Many groups are subject to situations of vulnerability, e.g. women, ethnic groups, children, displaced persons and human rights defenders, and the recommendations from the various human rights committees under the core treaties underline the need to focus on their specific plight with targeted measures to assist and protect them; – Resources: There is a need for transparency of national and local budgets and allocations, particularly to ensure equitable commitment to human rights. This invites human rights auditing of national programmes and

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actions, bearing in mind that resources should also be understood to cover social capital such as pro bono work and community volunteers; Checks and Balances: A variety of mechanisms and processes to prevent abuse of power is essential. The range of courts, human rights commission and ombudsman, together with active civil society, media, individuals and contributive business sector, are part and parcel of such checks and balances. A key challenge is to enable the uniformed authorities to have a role in society while not resorting to force to overturn the elected administration. Concomitantly, civilian courts are the place where civilians should be tried, thus separating them from military jurisdiction and related courts; Constraints on Rights: This is an area where international standards to clawback the clawbacks are useful. Notions of legality, necessity, proportionality and legitimary help to weigh the pros and cons of the various national security laws and prevent their excesses. The guidance of the international committees has been particularly important, to ensure a sense of balance when national security or public order are invoked to constrain rights. In any case, some rights are non-derogable and this should be underlined; Case Enforcement: As discussed earlier, case examples offered by the court judgements and the intermediation of other mechanisms such as the Human Rights Commission can help to enable compliance with international standards, while not overlooking the wisdom of local practices. Yet, they vary in terms of their congruence with international standards. Thus there is need to ensure that they are made public and open to critical analysis; Monitoring/Data/Information: As seen above, the response of the country in relation to several issues raised by the human rights committees is that there are little or no data. Thus it is pivotal to systematize and disaggregate data, particularly also to reveal the illegal practices which have to be overcome, bolstered by transparency measures; Capacity/Education: While there is now quite a lot of human rights education and training in the country, a key catchment area is to integrate it into the curriculum of law enforcers, coupled with “learn by doing.” The development of quality law enforcers goes hand in hand with broad education for the public, in particular through public awareness raising and integration of human rights education into not only the university sector but also primary and secondary levels of education, and non-formal education. The target should be to catalyse not only knowledge but also mindset and behaviour; Participatory Process: An active civil society is key to help to ensure respect for human rights and the ability to network, mobilize, and be mobilized are essential to ensure the upholding of human rights. This should be coupled with a process of reform, particularly evaluating antiquated laws, policies,

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programmes and practices, and reinforcing channels to prevent violations and to remedy transgressions. It is also increasingly evident that human rights today must be interlinked much more with protection of the environment. The truism that humanity’s fate is inextricably intertwined with Nature and the state of the Environment, particularly the issue of climate change, is now all the more resonant.6 At this juncture of the country’s history, it is critical to underline that the destiny of human rights is all-important but not self-contained. It goes hand in hand with the urgent call for democracy based on civilian rule, peace, and sustainable development. Essentially, the plea is to uphold the rights and interests of the people, their participation and their empowerment – their voices and choices, through non-violent means. With due respect for their sense of stakeholdership and ownership. The need to understand this connectivity – and ensure effective implementation of measures based on international standards while not forgetting local wisdom – is paramount, particularly when faced with the invasive tentacles of the powers-that-be. Overcoming that political paradox, with human rights as the preferred paradigm! 1 See details: www.ohchr.org. 2 Ibid. 3 Vitit Muntarbhorn, Unity in Connectivity? Evolving Human Rights Mechanisms in the asean Region (Boston/Leiden: Nijhoff, 2013). 4 sdgs: www.un.org/sustainabledevelopment/sustainable-development-goals/ (accessed 24 January 2016). 5 Rome Statute and signature by Thailand: www.iccnow.org/?mod=urc1011 (accessed 24 January 2016). 6 Climate Change negotiations and the Paris Agreement 2015: https://unfccc.int/resource/ docs/2015/cop21/eng/l09r01.pdf (accessed 24 January 2016).

Select Bibliography Books Asia Forum on Cultural Development, Our Voice: Bangkok NGO Declaration on Human Rights (Bangkok: Asia Forum on Cultural Development, 1993). Brownlie, Ian M., Principles of Public International Law (Oxford: Clarendon Press, 2012). Cannizaro, Enno (ed.), The Law of Treaties beyond the Vienna Convention (Oxford: Oxford University Press, 2011). de Schutter, Olivier, International Human Rights Law (Cambridge: Cambridge University Press, 2014). Development to Protect the Rights and Freedoms of the Thai People (KARN PATTANA PUA KUMKRONG SITTI LAE SERIPARB KONG CHONCHAO THAI) (Bangkok: Winyuchon press, B.E.2549) (in Thai). International Commission of Jurists, Thailand’s Internal Security Act: Risking the Rule of Law?, (Bangkok: International Commission of Jurists, 2010). Jamarik, Saneh, Development of Human Rights in Thailand (PATTANAKARN SITTIMANUSYACHON NAI PRATHET THAI) (Bangkok: Union for Civil Liberties, B.E.2531) (in Thai). Jamarik, Saneh, Rights Human: Standards, Values and Basic Concepts (SITTIMANUSYACHON: GAEN KUNN KAH LAE TAN KWAMKIT) (Bangkok: Foundation for Textbooks on Sociology and Humanities, B.E.2542) (in Thai). Jamnarnwej, Wimosiri and Muntarbhorn, Vitit (eds.), To Human Rights: Rights or Duties in Contemporary Thailand ? (SOU SITTIMANUSYACHON: SITTI RUE NATI NAI PRATHET THAI PACHUBAN ?) (Bangkok: Faculty of Law, Chulalongkorn University, B.E.2535)(in Thai). Jumpa, Manit, Introduction to the Constitution B.E. 2540 (KWAM ROU BUANG TON KEOW KUP RATTHATHAMMANUN B.E.2540) (Bangkok : Nititham press, B.E.2541) (in Thai). Kasitipradit, Somchai, Human Rights (SITTIMANUSYACHON) (Bangkok: Ramkamhaeng University, B.E. 2544) (in Thai). Katidhamanit, Wiwat, Community Rights: The Decentralisation of Resource Management (SITTICHUMCHON: GARN KRAJAI AMNART JATKARN SUPPAYAKORN) (Bangkok: Local Development Institute, B.E. 2536) (in Thai). Kosananand, Jaran, Human Rights Without Frontiers: Philosophy, Law and Social Reality (Bangkok: Nititham press, second print, B.E.2556)(in Thai). Lojaya, Weera, Human Rights Law (KOTMAI SITTIMANUSYACHON) (Bangkok: Sangc­hankarnpim, B.E.2524)(in Thai).

362

Select Bibliography

McNair, Arnold D., The Law of Treaties (Oxford: Clarendon Press, 1961). Ministry of Justice, Third National Human Rights Action Plan (2014–18) (Bangkok: Ministry of Justice, 2014). Ministry of Social Development and Human Security, Convention on the Rights of the Child/Protocols, (Bangkok: Ministry of Social Development and Human Security, no date). Muntarbhorn, Vitit, The Status of Refugees in Asia (Oxford: Clarendon Press, 1992). Muntarbhorn, Vitit, Dimensions of Human Rights in the Asia-Pacific Region (Bangkok: National Human Rights Commission of Thailand, 2002). Muntarbhorn, Vitit, The Mekong Challenge – Employment and Protection of Migrant Workers in Thailand: National Laws and Practices versus International Standards ? (Bangkok: ILO, 2005). Muntarbhorn, Vitit, Unity in Connectivity ? Evolving Human Rights Mechanisms in the ASEAN Region (Boston/Leiden: Nijhoff, 2013). Muntarbhorn, Vitit, Jamnarnwej, Wimolsiri and Boonlue, Tanawadee, Status of Women: Thailand (Bangkok: UNESCO, 1990). Muntarbhorn, Vitit and Taylor, Charles, Roads to Democracy: Human Rights and Democratic Development in Thailand (Montreal: Centre International des Droits et du Developpement Democratique, 1994). Muslim Lawyers’ Foundation, Security Laws: Directions to Solve the Conflict ? Case Study of Four Districts of Songkla Province and Three Provinces of Southern Thailand (GOTMAI KWAM MUNKONG: HONN TANG GAE KAI KWAM KATYAENG ? SUKSA KORANEE SI AMPHUR KONG CHANGWAT SONGKHLA LAE SAMM CHANGWAT CHAI DAN PARK TAI) (Bangkok: Duan Tula press, B.E.2553) (in Thai). National Economic and Social Development Board (NESDB), 11th National Economic and Social Development Plan(2012–16), (Bangkok: NESDB, 2011) (in Thai). Office of the United Nations (UN) High Commissioner for Human Rights (OHCHR), The Core International Human Rights Treaties (New York/Geneva: UN, 2014). Polwan, Kulpol, Human Rights in Thai Society (SITTIMANUSYACHON NAI SANGKOM THAI) (Bangkok: not available, B.E. 2543) (in Thai). Polwan, Kulpol, Human Rights in Global Society (SITTIMANUSYACHON NAI SANGKOM LOK) (Bangkok: Nititham press, B.E.2547) (in Thai). Sinkaneti, Banjerd, Basic Principles of Rights and Freedoms and Human Dignity (LUCK PUENTANN KONG SITTISERIPARB LAE SUCKSI KWAM PEN MANUT) (Bangkok: Winyuchon press, B.E.2555) (in Thai). Sinkaneti, Banjerd et al, Monitoring the Constitutional Legitimacy of Legal Provisions Affecting Human Rights (GARN TRUAT KWAM CHOP DUAY RATTHATHAMMANUN KONG BOT BANYAT HANG KOTMAI TI KRATOP TOR SITTIMANUSYACHON) (Bangkok: Office of the Constitutional Court, B.E. 2555), (in Thai).

Select Bibliography

363

Sobhak-Vichitr, Kosol, The Protection of Human Rights according to Thai Law (KARN KUMKRONG SITTIMANUSYACHON TARM KOTMAI THAI) (Bangkok: Wichai Rachadapisetsompoj, B.E. 2532) (in Thai). Srirat, Wichai (ed.), Human Rights and Rights and Freedoms of the Thai People (SITTIMANUSYACHON LAE SITTI SERIPARB KONG CHONCHAO THAI) (Bangkok: Sukothai Thammatiraj University press, B.E. 2543)(in Thai). Steiner, Henry J., Alston, Philip and Goodman, Ryan, International Human Rights in Context (Oxford: Oxford University Press, 2008). Streckfuss, David, Truth on Trial in Thailand: Defamation, Treason and Lèse-majesté, (London: Routledge, 2011). Sukothai Thammatiraj University, Human Rights and Rights and Freedoms of the Thai People (SITTI MANUSYACHON LAE SITTI SERIPARB KONG CHON CHAO THAI) (Nonthaburi: Nititham press, B.E. 2546) (in Thai). Suriya, Noppanidhi, Human Rights (SITTIMANUSYACHON) (Bangkok: Winyuchon press, B.E.2537) (in Thai). Van Beuren, Geraldine (ed.), International Documents on Children (Dordrecht: Martinus Nijhoff Publishers, 1993). Van Beuren, Geraldine, International Law on the Rights of the Child (Dordrecht: Martinus Nijhoff Publishers, 1998). Visarutpich, Vorapoj, Rights and Freedoms according to the Constitution (SITTI LAE SERIPARB TARM RATTHATHAMMANUN) (Bangkok: Winyuchon press, B.E.2538) (in Thai). Wiratnipawan, Wirat, et al., Analysis of Judgements of the Courts and the Constitutional Court (WIKROE KAM WINICHAI KONG SARN LAE TULAKARN SARN RATTHATHAMMANUN) (Bangkok: Pimpaipetch press, B.E.2545) (in Thai).



Articles and Reports

Ake-uru, Chalermpon, “The Role of the Constitutional Court in the Protection of the Rights and Liberties of the People: The Case of Thailand,” in The Constitutional Court under the Rule of Law in a Democracy under a Constitutional Monarchy (SARN RATTHATHAMMANUN PAI TAI LUCK NITIDHARMA NAI KARN POKRONG RABORB PRACHATHIPATHAI UNN MEE PRA MAHAKSATRIYA TSONG PEN PRAMOOK) (Bangkok: SATHABAN RATTHATHAMMANUN SUKSA, 2013), pp. 37–87. Chasombat, Sorayut (2012), Treaty – Making Process in Thailand under Article 190 of the Constitution B.E. 2550. https://caishenli.files.wordpress.com/2012/05/treatymaking-process-under-article-190.pdf (accessed 19 January 2016).

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Select Bibliography

Huguet, Jerrold W [ed.], Thailand Migration Report 2014, Bangkok, United Nations Thematic Working Group on Migration in Thailand, B.E. 2557 (A.D. 2014), pp.1–7. International Labour Organization, Thailand – A labour market profile, Bangkok, ILO Regional office for Asia and the Pacific, B.E. 2556 (A.D. 2013), pp. 36–37. Jirapaet, Witt, “Thoughts on Thai Human Rights ” (NAEW KIT SITTIMANUSYACHON THAI), Constitutional Court Journal, Year 3(B.E.2544)9, pp. 11–26. (in Thai). Law Editorial Board (KONG BANNATIKARN SUMNAK KOTMAI), “ Rights and Freedoms under the Thai Constitution: Concepts and Practices (LAK SITTI LAE SERIPHARB TAM RATTHATHAMMANUN HANG RACHA-ANACHAKTHAI NAEW KWAM KID LAE PARK PRATHIBAT),” JULNITI Journal, Year 8(1) (January B.E. 2554), pp. 1–56 (in Thai). Muntarbhorn, Vitit, “Human Rights and Thailand: Underlying Perspectives” (SITTIMANUSYACHON TASANAKATI RAKTARN), CHULALONGKORN Law Journal, Year 10, Part 1 (B.E.2528), pp.179–221 (in Thai). Muntarbhorn, Vitit, “ Human Rights and Peoples’ Rights: From Darkness comes Light” (SITTIMANUSYACHON LAE SITTI PUANGCHON: SANG SAWANG JAK KWAM KUN MUA), CHULALONGKORN Law Journal, Year 11, Part 2 (B.E.2530), pp. 125–47.(in Thai). Muntarbhorn, Vitit, “The Rule of Law and Human Rights” (LUCK NITIDHARMA GUP SITTIMANUSYACHON), PRA THAMMANUN Journal, Vol.48 “Rule of Law” issue (B.E. 2551–2552), pp. 38–48. (in Thai). Muntarbhorn, Vitit, “National Security Laws: Key Implications for Thailand,” National Security Laws: Directions to Solve the Conflict ? (GOTMAI KWAM MANKONG: HON TANG GAE KAI KWAM KATYAENG) (Bangkok: Cross Cultural Foundation, B.E.2553), pp. 28 – 44. Muntarbhorn, Vitit, “In Search of the Rights Track: Evolving a Regional Framework for the Promotion and Protection of Human Rights in the Asia-Pacific Region,” CHULALONGKORN Law Journal, Year 25 (Special Issue), pp. 207–46. Muntarbhorn, Vitit, “Thailand’s Constitutions: Retrospect, Prospect,” BOTBANDIT Journal, 53(1997)3, pp. 1–11. Muntarbhorn, Vitit, “Rule of Law and Aspects of Human Rights in Thailand: From Conceptualization to Implementation ?,” in Randall Peerenboom (ed.), Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the US (London/New York: Routledge, 2004), pp. 346–370. Muntarbhorn, Vitit, “Human Rights in the Era of Thailand Inc.,” in Randall Peerenboom, Carole J. Peterson and Albert H.Y. Chen (eds.), Human Rights in Asia: A Comparative Legal Study of Twelve Asian Jurisdictions, France and the USA (London/New York: Routledge, 2006), pp. 320–46. Muntarbhorn, Vitit, “Lessons of Black May 1992 and 2006 Coup,” Bangkok Post (23 May 2014), p.8.

Select Bibliography

365

Namsiripongpan, Wiriya, “Implementation of the Convention on the Rights of Persons with Disabilities in Thailand” (KARN ANUWAT HAI PEN PAI TARM ANUSANYA WA DUAY SITTI KON PIKARN NAI PRATHET THAI), THAMMASAT Law Journal, Year 38 (B.E.2552)1, pp. 43–70 (in Thai). National Human Rights Commission of Thailand, Annual Reports. See also: www.nhrc .or.th/ Polwan, Kulpol, “Human Rights in the Criminal Justice System according to UN Standards” (SITTIMANUSYACHON NAI KRABUANKAN TANG AYA TAM MATRATARN SAHAPRACHACHART), SRI PATUM Law Journal, Year 1 (1) (June 2551), 39–64 (in Thai). Reconciliation Commission, Report of the National Reconciliation Commission (NRC) (of Thailand), Overcoming Violence Through the Power of Reconciliation (Bangkok: National Reconciliation Commission, 2006). Sabayon, Sittiporn, “Equality according to the Provisions of the Constitution” (KWAM SAMOE PARK TAM BOT BANYAT RATTHATHAMMANUN), in The Constitutional Court under the Rule of Law in a Democracy under a Constitutional Monarchy (SARN RATTHATHAMMANUN PAI TAI LUCK NITIDHARMA NAI KARN POKRONG RABORB PRACHATHIPATHAI UNN MEE PRA MAHAKSATRIYA TSONG PEN PRAMOOK) (Bangkok: SATHABAN RATTHATHAMMANUN SUKSA, 2013), pp. 333–90 (in Thai). Suriya, Noppanidhi, “The Covenant on Civil Rights and Thailand’s Accession: Part 1: Interpretative Declarations” (KATIKA WA DUAY SITTI POLAMUANG GUP KARN PARKYANUWAT KONG PRATHET THAI TORN TI NUNG RUANG KUMM TALAENG TI KWAM), THAMMASAT Law Journal, Year 26 (B.E.2539)4, pp. 764–79 (in Thai). Suriya, Noppanidhi, “National Human Rights Commission (KANA KAMMAKARN SITTIMANUSYACHON HAENG CHART)”, THAMMASAT Law Journal, Year 29 (B.E.2542)4, pp. 538–54 (in Thai). Suteewarangkul, Teera, “The Protection of Rights and Freedoms of Persons Recognised by the Constitution”(KARN KUMKRONG SITTI LAE SERIPARB KONG BOOKON TI RATTHATHAMMANUN RUPPRONG), THAMMASAT Law Journal, Year 29 (B.E.2542) 4, pp.578–92 (in Thai). Thammapitakpong, Pimol, “The Constitutional Court and the Protection of Rights and Freedoms of the Population” (SARN RATTHATHAMMANUN LAE KARN KUMKRONG SITTI LAE SERIPARB KONG PRACHACHON), Constitutional Court Journal, Year 1 (B.E.2544) 7, pp. 67–84 (in Thai).



UN and Related Documents Concerning Thailand



Women’s Rights

Initial Report of State Parties: Thailand. UN Doc. CEDAW/C/5/Add.51 (June 1987).

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General Assembly Official Records, 45th Session, Supplement No.38, A/45/38(New York: UN, 1990), paras. 214–250. Thailand’s Report: UN Doc. CEDAW/C/THA/2-3 (April 1993). Comments: General Assembly Official Records, 54th Session, Report of CEDAW 20th Session and 21st Session, A/54/38 (Part I) (New York: UN, 1999); A/54/38/Rev.1 (June 1999). Thailand’s Report: UN Doc. CEDAW/C/THA/4-5 (June 2004). CEDAW Comments: UN Doc. CEDAW/C/THA/CO/5 (February 2006). List of issues: UN Doc. CEDAW/C/THA/Q/4-5 (July 2005). Thailand’s responses: UN Doc. CEDAW/C/THA/Q/4-5/Add.1 (December 2005).



Child Rights

Ministry of Social Development and Human Security, Convention on the Rights of the Child/Protocols, (Bangkok: Ministry of Social Development and Human Security, no date). Initial Report: Thailand, UN Doc. CRC/C/11/Add.13 (September 1996). Concluding Observations, UN Doc.CRC/C/15/Add.97 (October 1998). Second Report: Thailand, UN Doc.CRC/C/83/Add.15 (May 2005). Concluding Observations, UN Doc. CRC/C/THA/CO2 (March 2006). Working Team for Child Rights and Children’s Issues, Children’s Report on Child Rights and Children’s Issues (Bangkok: UNICEF, 2003). Third Report: Thailand, UN Doc.CRC/C/THA/3-4(September 2011). Concluding Observations, UN Doc. CRC/C/THA/CP/3-4 (February 2012). Report for Protocol on Children in Armed Conflicts: UN Doc. CRC/C/OPA/THA/1(July 2011). Concluding Observations: UN Doc.CRC/C/OPAC/THA/CO/1 (February 2012). Report for Protocol On Sale of Children: UN Doc. CRC/C/OPSC/THA/1 (July 2011). Concluding Observations: UN Doc. CRC/C/OPSC/THA/CO/1 (February 2012). List of Issues, UN Doc.CRC/C/OPAC/THA/Q/1(October 2011). Country response to List: UN Doc. CRC/C/OPAC/THA/Q/1/Add1(January 2012),



Civil and Political Rights

Initial Report, Thailand: UN Doc. CCPR/C/THA/2004/12 (August 2004). Concluding Observations, UN Doc. CCPR/CO/84/THA (July 2005). Thailand’s second report, UN Doc. CCPR/C/THA/2 (March 2015).

Select Bibliography

367

Thailand’s additional report (2006), sent by Thai mission, Geneva, 2 October 2006.



Racial Discrimination

UN Doc. CERD/C/THA/1-3 (October 2011). Concluding Observations of the CERD Committee: UN Doc. CERD/C/THA/CO/1-3 (November 2012). UN Doc. CERD/C/THA/Q/1-3 (July 2011). Thailand’s follow up report. UN Doc. CERD/C/THA/CO/1-3/Add.1 (January 2014).

Torture Thailand’s initial report, UN Doc. CAT/C/THA/1 (July 2013). Concluding Observations, UN Doc.CAT/C/THA/CO/1 (June 2014).



Economic, Social and Cultural Rights

Thailand’s Initial and Second Report, UN Doc. E/C.12/THA/1-2 (October 2013). For core document, see: UN Doc. HRI/CORE/THA/2012(October 2012). Thailand’s Reply: UN Doc. E/C.12/THA/Q/1-2/Add.1 (April 2015). Concluding Observations, UN.Doc. E/C.12/THA/CO/1-2 (June 2015).



Persons with Disabilities

Thailand’s initial report. UN Doc. CRPD/C/THA/1 (January 2015).

Index Access to justice 161, 239, 356 Accession 1, 15, 21–22, 24, 335, 342, 346 Accountability 15, 48, 159, 161, 336, 357 Act on the Suppression of Prostitution 27 Administrative Court 148, 160, 163, 318 Affirmative action 33, 38, 199 Anti-Trafficking Law 237, 272 Apartheid 196, 198 asean asean Human Rights Commission  352 asean Human Rights Declaration  352 Asylum-seekers 28, 43, 90, 95, 163, 199, 203, 207, 238, 241, 271, 317 Attorney General 149, 150 Birth Registration Act 85 Boxing Act 77, 78 Cambodia 41, 342, 343, 344 Capital punishment (death penalty) 3, 154, 157, 162, 350 Central Labour Court 153 Check and balance 318 Child Adoption Act 86, 87, 91 Child and Youth Development Act 84, 89 Child labour 32, 74–75, 78, 80, 83, 85, 88, 92, 147, 157, 355 Child Protection Act 81–82, 84, 89, 91, 94–95, 313 Child Protection Committee 91, 94, 95 Children in armed conflict 2–4, 9, 69, 80, 200 Civil and Commercial Code 267 Civil Registration Act (1991) 78 Civil Registration Act (2008) 86, 200 Civil Service Regulations Act 267 Climate change 354 Committee against Torture see also cat Committee on Economic, Social and Cultural Rights see also icescr Committee on Enforced Disappearances  see also ced Committee on the Elimination of Discrimination against Women see also cedaw

Committee on the Elimination of Racial Discrimination see also cerd Committee on the Protection of the Rights of All Migrant Workers and Members of their Families see also cmw Committee on the Rights of Persons with Disabilities see also crpd Committee on the Rights of the Child  see also crc Communications 2–4, 9, 37, 71, 95, 141, 160, 203, 265, 274, 311, 331, 342 Community rights 14, 150, 159, 270 Compensation and Expenses for Injured Person and Accused Act 233 Compulsory Education Act 82, 314 Computer Crimes Act 12, 91, 159 Constitution 5–12, 15 Constitution (1974) 24 Constitution (1978) 24, 27, 29, 32, Constitution (1997) 33, 79, 144–46, 148–50, 198 Constitution (2007) 39–40, 77–79, 94, 153, 157–59, 198–99, 230, 233, 267, 275, 313, 315, 334 Constitution (2014) 39 Constitution Court 7–8, 34, 41, 148, 201, 317 Consumer Protection Act 199 Convention against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment (cat) 2–4, 8, 12, 86, 160,  200, 228–64 Committee against Torture 3, 14, 230, 234, 238, 240 complicity 229 confession 229, 233, 239, 240 criminalization 229, 232, 238 definition 228–29, 234 education 229 extradition 229, 233 interrogation 229 investigation 229, 233, 237, 239 impunity 231–32 mutual legal assistance 229, 233 non-refoulement 228–29, 242 redress/remedy 229, 239, 241 universal jurisdiction 229, 233, 239

Index Convention on the Elimination of All Forms of Discrimination against Women (cedaw) 20–67 Committee on the Elimination of Discrimination against Women 3, 14, 23, 26,  39, 41 education 25, 30, 35–36, 38 employment 25, 29, 36 health 30, 31, 36, 39 nationality 25, 30, 35, 38 public office 25, 30, 35 rural women 26, 33, 36 sexual exploitation 24, 30 violence 27, 32, 33, 43 Convention on the Political Rights of Women 145 Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (cmw) 339–49 Committee on the Protection of the Rights of Migrant Workers and Members of Their Families 3 consular protection 340 definition 339 documented migrant workers 339–41, 344 education 341 forced labour 343 humane treatment 340 medical care 340, 345 slavery 340, 347 social security 340 trade union 340–41 transfer of earnings 341 undocumented migrant workers  339–41, 344, 345, 347 Convention on the Reduction of Statelessness 87 Convention on the Rights of Persons with Disabilities (crpd) 2, 4, 8, 86, 200,  309–28 accessibility 310–11, 313 Committee on the Rights of Persons with Disabilities 3 definition 309, 312 education 310 equality/non-discrimination 310–11, 312–13, 316, 318 health 310, 313, 317–18

369 inclusion 313 participation 310, 313, 319 reasonable accommodation 309, 316, 318 standard of living 310 universal design 309, 313, 318 work 310 Convention on the Rights of the Child (crc) 69–140 adoption 69, 87 best interests 68–69, 72, 87 birth registration 68, 78, 83, 85, 87 children in armed conflict/child soldiers 69–71, 80, 93–95 Committee on the Rights of the Child 3, 69, 75–76, 83–84, 89 disability 69, 73, 76, 83 education 69, 70, 74, 77, 80, 83, 87 employment/labour 72, 74, 76, 79, 80, 83, 85, 88, 92 exploitation and abuse 69, 74, 75, 76, 79, 80, 81, 83, 84, 88, 92 family 69, 73, 76, 79 health 69, 72, 73, 76, 79, 83, 85 juvenile justice/in conflict with the law 74, 76, 80, 84, 86 nationality 68, 73, 83, 85 violence 73, 85, 96 refugee 70 Convention on the Trafficking in Women and Children 3–4, 21 Convention relating to the Status of Stateless Persons 87 Corruption 39–40, 49, 270, 273, 278 Court of Appeal 332 Criminal Code/Penal Code 73, 75, 80, 91, 94, 95, 97, 152, 199, 203, 230, 232–34, 239 Criminal Procedure Code 77–78, 81, 90–91, 156, 158, 203, 231, 234, 239 Democracy 11, 12, 360 Department of Special Investigation 336 Derogation 141, 161 Detention 3, 12–13, 43, 154, 161, 240–41, 272 Discrimination 20, 275, 278, 312–13, 316, 319, 347 Domestic violence 33, 35, 37–38, 83, 151, 153, 156, 162, 237, 240, 267, 313

370 Domestic Violence Act 43, 84–85, 156, 158, 234, 237 Dualism 6, 159, 270, 317 Emergency Decree 12, 146, 152, 159–60, 161–62, 204, 206, 234–35, 239, 334 Enforced disappearance 8, 14–15, 203, 236–238, 240, 329–332, 334–335 Environmental development 14, 164, 206, 276, 360 Ethnic groups 163–64, 197, 201, 206, 272, 277 Exploitation of prostitution/Sexual exploitation 21, 24–25, 44, 273 Extradition Act 92, 233, 334 Fisheries Act 346 Form of Address for Women Act 267 Forced displacement 206, 273, 276–77 Freedom of expression 12, 154, 160, 275 Gender 162–63, 198, 205, 207, 270–71, 274–75, 353, 355, 358 Gender Equality Act 40, 203, 205, 270–71, 272, 273, 274 Hague Convention No. 28 on the Civil Aspects of International Child Abduction 82 Hague Convention No. 33 on the Protection of Children and Cooperation in Respect of Inter-country Adoption 79, 82 Hate speech/Incitement to racial hatred 149, 160, 195, 196, 205–6 Human rights action plan 16, 162, 270 Human Rights Committee 3, 141, 144, 150, 153–54, 159 Human Rights Council 162, 351–52 Human rights defenders 151, 154, 157, 236, 237, 240, 273, 331–32, 335–36, 358 Human rights situation 10–16 Human trafficking 37, 40, 43, 44, 85, 152, 154, 158, 163, 203, 232, 237, 272, 273, 275, 278, 343, 345–46, 355 Human Trafficking Act 32, 157, 200, 207, 232, 313, 345 Immigration Act 158, 197, 204 Implementation 357–60 Indigenous peoples/communities 201, 206, 207, 273

Index Internal Security Act/National Security Act 12, 204, 206, 234, 239 International Cooperation 85, 92, 356 International Court of Justice 22, 41, 196, 230 International Convention for the Protection of All Persons from Enforced Disappearance (ced) 2–4, 8, 236–37, 329–38 complicity 329, 333 Committee on Enforced Disappearances 3, 331 criminalization 329–30, 332 definition 329–30 extradition 333–34 human rights defender 331, 335 jurisdiction 329, 333 mutual legal assistance 329, 334 non-refoulement 329 secret detention 329, 334 statute of limitation 329–30, 334 International Convention on the Elimination of All Forms of Racial Discrimination (cerd) 2–4, 8, 12, 82, 195–227 asylum seeker 199, 204, 207 Committee on the Elimination of Racial Discrimination 3, 14, 204, 205 definition 195–96 Durban conference 195–99 ethnic groups 197, 201 forest/forestry 199, 201, 206 hate speech 195–96 indigenous peoples 201, 207 migrant workers 199, 202, 207 nationality/citizenship 196 trafficking 199, 203 International Covenant on Civil and Political Rights (iccpr) 2–4, 8, 12, 13, 141–94,  206, 359 capital punishment 146, 151, 157, 162 equality 141 equality before the law 141 freedom of association 141, 149 freedom of expression 141 freedom of thought, conscience, and religion 141, 149 minority/ethnic group 142, 163 non derogable rights 142–43 non retroactive penal law 141, 148 peaceful assembly 141, 149

371

Index public emergency/national security/ emergency law 141–142, 146, 148, 151–52,  161–62 right to life 141 security of person 141 self-determination 141 slavery 141, 143, 147 torture 141, 147 International Covenant on Economic Social and Cultural Rights (icescr) 2–4, 8, 12,  160, 269–308 anti-poverty 268, 271, 275 cultural life 265–66, 269 Committee on Economic, Social and Cultural Rights 3, 14, 270, 274, 275 education 265, 269, 272, 276 family 265–66, 268, 271 gender equality 265–266, 267, 270–71, 273, 274 health 265, 269, 272, 274, 276 land 270, 276 progressive realization 265–66 resource 265–66, 276 social security 265, 268, 271 standard of living 265–66, 272 work 265–66, 268, 271 International Criminal Court 95, 357 International Labour Organization Conventions 268, 342–43, 346 ilo Convention No. 122 207 ilo Convention No. 137 82 ilo Convention No. 182 82, 271 International Organization for Migration 347 Interpretative declaration 10, 21, 143–44, 149, 153, 160, 196, 200, 205–6, 229–30, 266, 358 Imam Yapa Kaseng 235 Jahwa Jalo 236 Juvenile and Family Procedures Act 74, 80 Krue Se/Krua Sae 155–56, 161 Labour Protection Act 32, 36, 40, 77, 78, 80, 92, 145, 152, 202, 268, 277, 344–46 Labour Relations Act 149, 277, 344, 345 Lao/Laos/Laotian 92, 148, 152–53, 157, 342, 344

Legal Cooperation in Criminal Matters Act 334 lgbti 40 Lese majeste 12, 158–60, 272, 274–75 Mae Ai 163 Malayu women 202–3, 207 Map Ta Phut 270 Myaleng Maranor 236 Myanmar 42, 43, 80, 92, 95, 157, 163, 204, 207, 342, 344 Martial Law Act 12, 146, 149, 152, 160, 204, 206, 234–35, 239, 334 Measures in Prevention and Suppression of Trafficking in Women and Children Act 77, 81, 86, 146, 345 Memorandum of Understanding 35, 43, 86, 92, 96, 97, 199, 344, 345–46 Mental Health Act 314, 317 Migrant workers 15, 36, 43, 90, 163, 199, 202, 207, 269, 217–73, 277, 355 Millennium Development Goals 37, 275, 353 Military Service Act 94 Ministry of Foreign Affairs 342 Ministry of Public Health 314 Ministry of Labour 79, 81, 152, 342 Ministry of Social Development and Human Security 82, 275, 312 Minorities 69, 81, 84, 86, 142, 150–51, 157, 207 Money Laundering Control Act 77, 81, 91, 92 Monitoring bodies/Monitoring committees 3–4, 10, 12, 16, 43, 350–52 Muslim 13, 43, 75, 83, 155–56, 163–64, 207, 277, 331–32 Mutual Legal Assistance Act 233 Myanmar 42, 43, 80, 92, 95, 157, 163, 204, 207, 342, 344 Name of Person Act 267 National Child and Youth Development Promotion Act 84, 86, 89, 159 National Commission on Women’s Affairs 23, 26, 29, 30, 32, 34–35, 42 National Counter Corruption Bureau 77 National Education Act 35, 77, 78, 314 National Health Act 85, 314 National Health Security Act 269 National Human Rights Commission

372 cat 233, 235, 238, 241 cedaw 34, 37, 42 crc 79, 82, 89, 91, 94 crpd 315 iccpr 151, 153–54, 162 icescr 273 National Protected Forest Act 199 National Reconciliation Commission 156 National security 12–13, 21, 28, 29, 40, 142, 146, 159, 160–61, 202, 273, 274, 275 National Security Act 12 National Youth Bureau 75, 82 National Youth Commission 91, 94, 95 National Youth Promotion and Coordination Act 72 Nationality Act 42, 85 Non-discrimination 22, 34, 40, 41, 69, 72, 82, 142, 145, 199–200, 205, 241, 267, 270, 274–75, 358 see also crpd Non-governmental organization/Civil society 5, 16, 40, 42, 88, 241, 348, 350,  357–58, 359 Non-nationals/Non-Thais 196–97, 207, 241–42, 273, 277–78, 317, 344, 358 Non-refoulement 83, 151, 228, 232, 238, 241–42, 273, 331 Non-state armed group 93, 95, 240 Official Information Act 79, 148 Ombudsman 35, 37, 42, 77, 79, 82, 233, 241, 359 Optional Protocol to the cat 2, 3 Optional Protocol to the cedaw 2, 3, 8, 37, 39 Optional Protocol to the crc on a Communications Procedure 2, 3, 9, 71, 90, 95–96 Optional Protocol to the crc on the Involvement of Children in Armed Conflict 2, 3,  9, 70, 84, 86, 90, 93, 96, 200 Optional Protocol to the crc on the Sales of Children, Child Prostitution and Child Pornography 2, 3, 8–9, 70, 84, 86, 90, 96  97, 200 Optional Protocol to the crpd 2, 3, 309 Optional Protocol to the iccpr 2, 3 Optional Protocol to the icescr 2, 3 Order No.64 and No.66 273, 276

Index Peaceful assembly and association 12, 69, 142, 159, 160 Peaceful and inclusive societies 354, 356 Persons with disabilities 15, 79, 85, 317, 355 see also crpd Persons with Disabilities Empowerment Act 312, 316 Pholachi Rakcharoen (a.k.a. Billy) 236, 332 Poverty 29, 268–69, 272, 274, 353–55 Prevention and Suppression of Prostitution Act 77, 81, 91, 146 Printing Act 79 Publishing Registration Act 91 Racial discrimination 15, 78, 168, 195, 197, 198, 201, 205, Radio and Television Broadcasting Act 199 Ratification 4–6, 8, 22–23, 68, 70, 82, 86, 91, 97, 143, 200, 237, 238, 266, 271, 309, 312, 313, 316, 342, 346, 358 see also Accession Refugee Convention and its Protocol 43, 207, 271 Relations of Public Enterprises Act 149 Reservation 10 cat 229 cedaw 21–23, 25–28, 31–33, 36, 41 cerd 196, 200, 205 crc 70, 75, 77, 83–84, 86, 88 crpd 312, 313, 317 iccpr 143, 151, 160 Resources 206, 265–66, 276, 319, 358 Revised Labour Ministerial Regulation to Protect Labour in the Sea Fishing Industry 272 Revolutionary Announcement 25, 42, 81 Revolutionary Decree 72, 74, 81–82 Rohingya 43, 163, 203, 204–5, 207, 238, 242 Rome Statute of International Criminal Court 95, 357 Royal Thai Police 231–32 Rule of law 160, 161, 350, 356 Second Optional Protocol to the iccpr 2, 3 Sale of Women and Girls Act 75 see also Trafficking of Women and Girls Act Second World War 1, 3–4, 5, 20, 348 Self-identification 201, 206, 273

Index Sexual orientation and gender identity  162–63, 274 Slavery 355 see also cmw; see also iccpr Special Procedures 331–32, 347, 351–52 Social Security Act 31, 74 Socialism 348 Somchai Neelaphaijit 236–37, 240, 331, 336 Southern Thailand 13, 37, 86, 90, 95–96, 152, 158, 202, 203, 239–40, 274, 277, 334 States 1, 5, 6, 7, 9, 10, 16 State Enterprises Act 345 Stateless person 15, 42, 82, 83, 84, 87, 151, 163, 201, 273, 317, 345 Sulaiman Neasa 235 Supreme Court 15, 145, 153, 231, 232–33, 332 Sustainable development 35, 354, 356, 360 Sustainable Development Goals 275, 353–57 Tak Bai incident 152, 154–55, 156, 161 Terrorism 356 Thai Labour Practice 318, 348 Thailand 1, 3, 5 Torture victim 15, 240 Trafficking and smuggling 33, 35, 38, 40, 43–44, 85, 92, 151, 152–53, 154, 163, 203, 272–73, 275, 278, 343, 345–46, 347, 355–56 Trafficking of Women and Girls Act 25, 35 Treaties 1–10, 15–16, 20, 22–23, 350 Tripartite system 347

373 Uighurs 163, 242 Undocumented workers 269, 277–78, 343–45, 346, 347 United Nations 1, 329, 339, 351–52 United Nations Charter 5 United Nations Convention against Corruption 270 United Nations Declaration on the Rights of Human Rights Defenders 240 United Nations High Commissioner for Refugees 199, 204–5, 347 un Special Rapporteur on Torture 234 un Special Representative on Human Rights Defenders 336 un Protocol against Human Trafficking 157, 199 Universal Declaration of Human Rights 1, 5 Universal health care 13, 26, 30, 34, 36, 199–200, 269, 272, 274, 276, 278, 314, 318, 350 Universal Periodic Review 162, 351–52 Vienna Convention on the Law of Treaties 1 See also Conventions Vietnam 92, 148 Violence 10–11, 13, 275, 356 Wildlife Conservation Zone Act 199 Witness Protection Act 199, 333 Working Group on Enforced or Involuntary Disappearances 236–37, 331, 332 Working of Aliens Act 158, 280, 344