Thailand’s Human Rights Investigations’ Imbroglio

In late January 2021, Thailand’s appointed Senate overwhelmingly chose Wasan Paileeklee over Dr Ratchada Jayagupta to sit on the National Human Rights Commission (NHRC). Unlike Dr. Jayagupta, Wasan had no human rights experience. He has worked with the Prayuth Chan-ocha government’s Anti-Fake News Centre implying that the state increasingly views allegations of human rights abuses as fake news. 

Wasan’s appointment goes with, not against, the grain of recent NHRC developments. What Tingsamitr, the NHRC chairperson who retired in September 2020, was an arch-conservative former judge appointed by the junta in 2015. He also lacked human rights credentials. Upon his retirement, an ideologically-similar judge already appointed to the Commission succeeded him. Between 2017 and 2019, four of the seven sitting commissioners resigned, with two citing insufficient NHRC independence. Currently, three regular and four temporary commissioners administer the NHRC. It is hard-pressed to adequately investigate human rights abuses and, at times, acts as a mouthpiece for the state.  

The NHRC today is much less than the expectations it fostered. The NHRC originated from Thailand’s euphoric 1997 “people’s” constitution. Instituted in 2001 as an independent agency, the NHRC was tasked with overseeing state and non-state actors’ human rights records.  It could also mediate in rights-related conflicts. The selection process for the first batch of commissioners involved civil society and led to the selection of political progressives such as long-time activist Jaran Dithaapichai. During the Thaksin administration, the NHRC investigated alleged state-led extrajudicial killings and repression of Thais protesting a Thai-Malaysian oil pipeline. 

Ironically, Thailand’s 2006 coup against the Thaksin administration and subsequent 2007 constitution gave the NHRC more power. It could file complaints with the Administrative Court and the Court of Justice and make recommendations to the Constitutional Court. However, foreshadowing today, the selection process for the second batch of commissioners was handed to a committee dominated by judges and with no civil society representation. The commissioners chosen in 2009 had little human rights experience and included one alleged human rights abuser previously investigated by the NHRC. 

The current third batch of commissioners appointed in 2015 by the junta led by Prayuth included mostly arch-conservative former bureaucrats or judges. In 2017, a new NHRC law required the agency to investigate any reports about Thai human rights deemed to be “unfair” to Thailand, thus giving the NHRC an anti-fake news agenda while adding more cases to its already burdensome workload.  In 2019, the agency launched a disciplinary inquiry into one of its commissioners, Angkhana Neelapaijit, who had criticised Thailand’s then-ruling junta and documented rights violations against junta critics. Angkhana’s Muslim-lawyer husband Somchai was forcibly disappeared in 2004. Her voluntary resignation from the Commission in July 2019 ended the investigation into her but the affair demonstrated the NHRC’s pro-junta bias. When student demonstrations rapidly intensified in August 2020, the NHRC became involved because of potential human rights abuses but its response was to demand that protestors follow the law. It criticised protestors’ demands as “vague” and simply attempting to “monopolise legitimacy.”

The current third batch of commissioners appointed in 2015 by the junta led by Prayuth included mostly arch-conservative former bureaucrats or judges.

The international community has recorded and acted on its disapproval of these NHRC developments. In November 2015, the Global Alliance on National Human Rights Institutions that is overseen by the United Nations General Assembly downgraded the NHRC to Grade B because of the opaque selection process of its commissioners, its inability to address human rights issues in a timely manner, and apparent partiality and dependence on the government. The NHRC has yet to regain a Grade A status, a status held by 84 of 127 accredited national human rights institutions. The 2015 downgrade is embarrassing and diminishes Thailand’s allowed participation level within the United Nations Human Rights Council.

Today, the NHRC continues to have a noble mandate but its obstacles are many. First, according to the NHRC itself, its budget is insufficient. Second, though the NHRC possesses powers to investigate and report violations of human rights, investigations are stymied when the Emergency Decree or Martial Law Act are in force or when powerful state or private interests apply pressure. When local Thai human rights organisations have charged powerful actors such as the Army with human rights abuses, they easily become prey to criminal defamation suits, as occurred when the Army filed such a case in 2016.  Though the Army later dropped the charges, the NHRC did nothing to assist the affected local NGO.  Third, most NHRC mandates are so ambiguous that they are close to ineffective. This year, though, the agency regained the authority to mediate cases before they reach court (a power voided in 2014).  Fourth, the NHRC has, since 2017, investigated critics of human rights abuses.

Another state agency that could become more involved in human rights abuse investigations is the Department of Special Investigations (DSI). The DSI, officially an independent arm of Thailand’s Justice Ministry, works on difficult cases involving powerful figures. The DSI is to be tasked to enforce the Prevention and Suppression of the Torture and Enforced Disappearances Bill, which may become law in 2021. The DSI has been criticised for partisanship and failing to solve the disappearances of lawyer Somchai Neelapaijit in 2004 and Karen activist “Billy” Rakchongcharoen in 2014. 

The NHRC and DSI look unlikely to bring justice to many victims of alleged human rights violations anytime soon. Many alleged human rights abusers remain too politically powerful. The recent appointment of Wasan reinforces the suspicion that the Thai state has become more interested in investigating accusers rather than the accused. 

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