Theerajit Sathirotamawong
Chairperson
Senate Committee to assess NHRC nominees
Office of the Senate Secretariat
499 Sukpraprueit Building
Prachachuein Road
Bangsue, Bangkok 10800
THAILAND

Fax: +662 831 9211


Dear Mr. Theerajit

THAILAND: Senate must give more time for debate on new NHRC

The Asian Human Rights Commission (AHRC) is writing to you out of concern that the selection process for a new National Human Rights Commission (NHRC) of Thailand is being rushed through in a highly undemocratic manner, without any public consultation or accountability and contrary to the basic principles that the NHRC is supposed to represent. We urge you to delay the selection process to allow more time for discussion and debate, or risk violating international standards on National Human Rights Institutions, which may affect the NHRC’s official status in global forums not to mention undermine its credibility in the eyes of the general public of Thailand.

By way of background, the AHRC is aware that even though the terms of the former NHRC commissioners expired in 2007, as there was at that time an interim military-installed government operating under a temporary constitution, they stayed on in their positions under the terms of the law governing the commission's work. However, after the Constitution of Thailand BE 2550 (2007) came into effect, in October 2007 two persons approached the Administrative Court to have new commissioners elected under the altered terms of the new charter. In a ruling prepared on 12 December 2008 that was read on 30 January 2009, the Supreme Administrative Court held that the former commissioners should vacate their seats and that it was not necessary to delay appointment of new commissioners until a new NHRC law was prepared by parliament.

Accordingly, on 11 March 2009 the NHRC secretary invited applications for new commissioners, giving a period of one week for applications, from March 14 to 20. Applications had to be submitted in person at the NHRC office in Bangkok. The office received 133 applications. The Selection Committee, consisting of the presidents of the three top courts, two persons chosen by two assemblies of judges, and the president of the lower house of parliament met to consider the applications on April 8. The seventh member of the committee, from the political opposition, was not involved apparently due to the political uncertainty gripping Thailand.

On April 10 the committee sent the names and documents of its seven nominees to the Senate for consideration and approval. The seven are: Police General Vanchai Srinuwalnad, assistant commissioner general of the Royal Thai Police; Mr. Parinya Sirisarakarn, former member of the Constitution Drafting Assembly of Thailand (2007); Mr. Paibool Varahapaitoorn, secretary to the Office of the Constitution Court; Ms. Visa Penjamano, ministerial inspector, Ministry of Social Development and Human Security; Mr. Taejing Siripanich, secretary, Don’t Drive Drunk Foundation; Mr. Nirand Pithakwachara, former elected senator for Ubol Ratchathani; and, Professor Amara Pongsapich, former dean, Faculty of Political Science, Chulalongkorn University.

On April 20 the Senate established a committee to review the nominees and the following day it announced that it would give until April 27 for public comment on the seven, that is, until this coming Monday.

The AHRC would like to point to just a few of the most obvious problems with the selection process so far:

1. Inadequate time for candidates to come forward and for public debate: From mid-2007 to March 2009 there was no action on the selection of new commissioners. Then a period of only one week was given for applicants to present themselves at the office in Bangkok and submit forms and supporting documents for candidacy. After that, this second period of only one week, announced on the second day of the week, from April 21 to 27, was given for members of the public to make comments via a post office box at the Senate.

2. No attempt to encourage public debate or awareness: The announcements for candidates and for comment on nominees have been made through official websites and government channels. There have been no attempts, to the knowledge of the AHRC, to inform the general public about the process or encourage debate on commissioners, either through television, radio or print media. No fax numbers have been provided for prompt submission of comments in the week provided. Nor has an attempt been made to use the Internet so that people can make comments easily. Although public submissions were invited via the Senate website, when the AHRC visited the website we could not find any dedicated page or form for the submitting of comments.

3. Selection process itself patently flawed: The Selection Committee chose the seven nominees based solely upon the written forms and supporting documents that they submitted. Unlike the nominees to the previous commission, they were not interviewed and nor were they required to give a speech to the Senate before approval. It is hard to see how the committee could make informed decisions about these candidates without even meeting with them. This is of special concern given the undemocratic composition of the new Selection Committee, itself comprising of judges, judge appointees, and one representative of the incumbent party in government, by contrast to the body that selected the former commission under the terms of the Constitution of Thailand BE 2540 (1997), which included representatives of civil society, the media and other sectors.

It is in these respects that the AHRC is concerned that the selection process as it stands at present may result in the election of an NHRC that violates both the 2007 Constitution as well as the Paris Principles on National Human Rights Institutions.

With regards to the first, under section 256 of the 2007 Constitution the NHRC should comprise of persons "having apparent knowledge and experiences in the protection of rights and liberties of the people, having regard also to the participation of representatives from private organisations in the field of human rights". However, the selection process in 2009 has resulted in a body of seven candidates with little manifest knowledge and experience in the protection of human rights, among whom none are representatives of private organisations in the human rights field. This is despite the fact that there were applicants for the position from such organisations and others with very considerable knowledge and experience who were not selected.

With regards to the second issue, section 1 of the Principles Relating to the Status of National Institutions on human rights (The Paris Principles) (adopted United Nations General Assembly resolution 48/134 of 20 December 1993) on composition states that,

"The composition of the national institution and the appointment of its members, whether by means of an election or otherwise, shall be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society) involved in the protection and promotion of human rights, particularly by powers which will enable effective cooperation to be established with, or through the presence of, representatives of: (a) Non-governmental organizations responsible for human rights and efforts to combat racial discrimination, trade unions, concerned social and professional organizations, for example, associations of lawyers, doctors, journalists and eminent scientists..."

However, the selection process for the NHRC of Thailand in 2009 has been marked by an absence of procedures to afford necessary guarantees to ensure pluralist representation of the sort envisaged in the Paris Principles. Nor do the seven nominees include among them anyone from a non-governmental organization responsible for human rights, trade unionists or others from a diverse range of social backgrounds, which is manifestly a consequence of the manner in which they have been chosen.

Furthermore, the AHRC notes that under section 1(e) on the composition of an institution under the Paris Principles, it is explicitly stated that members of government departments, if included in the NHRC "should participate in the deliberations only in an advisory capacity". However, three of the seven nominees for the commissioners' posts are in fact serving in other parts of government (the police, judicial administration and a ministry). Their candidacy, if approved, would appear to violate this section.

At present the NHRC of Thailand holds full accreditation status with the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights; however, that status is subject to review, and if it is found that the country has not complied with international standards in the selection and composition of the NHRC it may be downgraded and lose its rights and privileges in international forums. This happened to the Human Rights Commission of Sri Lanka after that country's president failed to comply with the correct procedure in appointing new commissioners. The Senate of Thailand too should take that as a warning of what may follow if it is too hasty in its appointment of the seven nominees, without regard to the international standards to which the NHRC is expected to comply if it wishes to be treated seriously in forums on human rights abroad.

In light of the above, the Asian Human Rights Commission urges the Senate Committee for assessment of the new National Human Rights Commission of Thailand and the Senate as a whole to postpone the appointment process of the new commissioners to allow more time for public debate on the seven nominees. The debate should be accompanied with wide publicity to invite public comment through as many means as possible, including online and by fax. The Senate itself, when reviewing the nominees and considering whether to accept or reject them, should take into account not only the personal qualities and backgrounds of the candidates but also the process of selection and consider whether or not it is possible for appropriate commissioners to be identified without so much as an interview.

At a time of intense debate and conflict in Thailand over the country's future, the role of the NHRC should be one of special importance. If suitable persons are selected to serve as commissioners they could contribute towards bringing Thailand into a new and more progressive and prosperous future. If not, the commission will be rightly dismissed as a sham and a failure, not only among people in Thailand but also in the global community. More time is needed to make the right decisions and chart the course between these two alternatives.

Yours sincerely

Basil Fernando
Executive Director
Asian Human Rights Commission, Hong Kong

Cc:
1. Mr. Abhisist Vejjajiva, Prime Minister of Thailand
2. Mr. Prasobsuk Boondech, President, Senate of Thailand
3. Ms. Jennifer Lynch, Chairperson, International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights
4. Ms. Margaret Sekaggaya, UN Special Rapporteur on human rights defenders
5. Mr. Homayoun Alizadeh, Regional Representative, OHCHR, Bangkok