The Asian Human Rights Commission (AHRC) would like to express grave concern about the current state of the draft amnesty bill in Thailand. The draft amnesty bill (in full, the Draft Amnesty for Those Who Committed Offences as a Result of the Political Protests and Political Expression of the People B.E…..) is broad, vague, and appears to be motivated by political expediency at the expense of human rights, justice, and the rule of law. If passed in its current form, the bill will allow murderers to walk free without even a slap on the wrist. The amnesty will constitute the erasure of the suffering and losses of those who died or were injured as a result of violence perpetrated by state actors. In particular, if passed in its current form, the amnesty will allow those who were responsible for the deaths of 92 persons and the injuries of over 2000 during the clashes between state forces and Red Shirt protestors in April-May 2010 to evade accountability.
The core of the draft amnesty bill is in Article 3, the measure which describes which actors, what actions, and what period of time are to be covered by the law. In the initial draft, prepared by Mr. Worachai Hema, a Pheu Thai MP and his colleagues, Article 3 stipulated the following: “All actions of persons that were related to political demonstrations or political expression, or individuals who did not participate in political demonstrations but the motivation of the actions was related or connected to political conflict. By calling through speeches or broadcasting through whatever means to call for or create opposition to the state, self-defense, resistance to the operations of state officials, or rallies, demonstrations, or expressions using any means that could impact life, body, hygiene, property, or any rights of other individuals that were incidents related to political demonstrations or political expression from 19 September 2006 until 10 May 2011, are no longer offences, and the actors are absolved from wrongdoing and all responsibility. The actions in the first paragraph do not include the actions of those who had decision-making authority or decisive authority or directed political movements in the period specified above.”
In sum, the draft approved during the first reading exempted from responsibility all those involved in political demonstrations on all sides, including state actors but excluding those in positions of authority inside and outside the state, during the period of political conflict which began with the 19 September 2006 coup and ended with the dissolution of Parliament and announcement of elections on 10 May 2011. Parliament voted to accept this in principle during the first reading of the bill in August 2013. In a written submission to the UN Human Rights Council during the September 2013 session, the Asian Legal Resource Center (ALRC), the AHRC’s sister organization, echoed the concerns of the Office of the UN High Commission on Human Rights that the draft bill might allow those involved in the violation of human rights to be exempt from punishment, and further noted that the categories of those to be amnestied were unclear.
Subsequent to the first reading, an ad hoc committee of MPs was appointed to examine the draft amnesty bill. In late October 2013, they returned the draft to the full assembly for the second and third readings. The ad hoc committee made significant changes to Article 3. In the current draft version, Article 3 stipulates that: “All actions of persons or people that are related to political demonstrations, political expression, political conflicts or those accused of being wrongdoers by a group of individuals or an entity established after the coup of 19 September 2006, including organizations or agencies who proceeded in relation to the aforementioned matters that occurred between 2004 and 8 August 2013, whether the person undertaking actions did so as a principal, supporter, someone who ordered [others] to take action, or some who used [by others], if those actions were illegal, the actors are absolved from wrongdoing and all responsibility.”
In sum, the draft returned by the ad hoc committee and approved during the second and third readings exempts all involved persons from responsibility, including state officials who gave orders and protest leaders who directed demonstrations. This draft also expands the period of time covered by the amnesty to begin in 2004 (although when precisely in 2004 is not specified) and to extend until August 2013. As human rights activists have raised, this then seems to be an attempt to extend the amnesty, which already will provide impunity to those state actors who perpetrated violence during the April-May 2010 crackdown on Red Shirt protestors, to cover the incidents of the Krue Se and Tak Bai massacres, the disappearance of human rights defender (HRD) and lawyer Somchai Neelaphaichit, and the murders of other HRDs which took place during the years in which Thaksin Shinawatra was prime minister before being extraconstitutionally ousted in the 19 September 2006 coup. This draft version of the bill was passed by Parliament in the second and third readings on 31 October and 1 November 2013, and has now been forwarded to the Senate for examination.
If an amnesty bill which contains this version of Article 3 becomes law, the long history of impunity in the country will be further consolidated by the passage of this amnesty bill. The AHRC would like to remind responsible actors of the state responsibilities to end impunity and to urge concerted effort to act in the service of human rights. In the updated set of principles for the protection and promotion of human rights through action to combat impunity (E/CN.4/2005/102/Add.1), the United Nations Commission on Human Rights described the obligation of states to end impunity and secure accountability in the aftermath of state violence as follows: “Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.”
What makes this draft amnesty a signal of a particular crisis of impunity in Thailand is that in contrast to earlier instances of mass state violence, namely 14 October 1973, 6 October 1976, and May 1992, there has been extensive investigation of the violence of April-May 2010, and the beginnings of judicial processes to hold state perpetrators to account. A series of investigations have been carried out by different kinds of actors, including a state agency, two state-appointed independent bodies, and a citizen group. The citizen group, the People’s Information Center (PIC), released their report in late August 2012; the Truth and Reconciliation Commission of Thailand (TRCT), the first of the independent bodies, released a short report in September 2012 and their full report in July 2013; and the National Human Rights Commission (NHRC), the second of the independent bodies, released their report in August 2013. The report of the state agency, the Department of Special Investigation (DSI), has not been made public. In comparison to the reports of both the TRCT and the NHRC, the report of the PIC represents a rigorous accounting of the events of March-May 2010. The ALRC views the report of the PIC as an important action by citizens in the service of protecting human rights and ending impunity. Although the AHRC wishes to note concerns about the lacunae in the TRCT and NHRC reports, and dismay at the continued refusal of the DSI to release their report to the public, this marks the first time in Thai history that there has been a sustained, public attempt at gathering information about state violence carried out by state, or state-appointed, agencies.
Further, in addition to gathering information, judicial proceedings have begun in many instances with post-mortem inquests into the deaths of April-May 2010. To examine but one example, on the final day of the crackdown, 19 May 2010, 6 civilians were killed inside a Buddhist temple, Wat Pathum Wanaram, which was close to the center of the protests. On 6 August 2013, the Bangkok Southern court ruled in the postmortem inquest in Black Case No. C5/2555 that these 6 civilians were killed by soldiers. The court noted that, “The deaths were caused by being shot with .223 or 5.56 mm bullets and the direction of fire was from where the competent officials were stationed to perform their duties to maintain order on the BTS’s rail tracks in front of Wat Pathum Wanaram Ratcha Worawiharn and around Rama I Road. At the instructions of the Center for Resolution of Emergency Situation (CRES), the officials took control over the area of the Ratchaprasong Intersection. And as a result of that, the first deceased died of gunshot wounds on his lungs and heart causing hemorrhage, the second deceased died of gunshot wound that destroyed his lungs, the third deceased died of gunshot wounds that destroyed his lungs, heart and liver, the fourth deceased died of gunshot wounds that destroyed his lungs and liver, the fifth deceased died of gunshot wounds that destroyed her brain and the sixth deceased died of gunshot wounds that went through his oral cavity, whilst no particular perpetrators can be identified” (unofficial translation provided by Prachatai). Given the conclusion by the court, the AHRC is concerned that if the amnesty is passed in its current form, it means that the case will end with the inquest, rather than further action being taken so that the officials responsible for carrying out the violence and the officials responsible for ordering the violence are held to account.
The dangers posed by the draft amnesty bill in its current form are not only specific to the instances of state violence and violation of human rights which have taken place since 2004, but extend into the future as well. In a recent statement criticizing the draft amnesty proposed by the Parliamentary ad hoc committee, the Khana Nitirat, a group of law lecturers at Thammasat University warned that in addition to being in direct conflict with the Thai state’s obligations under the International Covenant on Civil and Political Rights (ICCPR), the amnesty will “further habituate[s] state officials, especially soldiers, to take such actions against the people without concern that they will have to accept legal responsibility in the future.”
At this important juncture in Thai history, the Asian Human Rights Commission calls on Prime Minister Yingluck Shinawatra, Members of Parliament, Senators, and all other responsible actors in Thailand to act in the service of ending impunity and fostering human rights. The AHRC is cognizant that it may not be possible to halt the amnesty process and recommends that if this is the case, that the Senate send the draft bill back to the Parliament for reconsideration and redrafting so as to bring any potential amnesty bill in line with the principle and rationale decided upon by the Parliament during the first reading.
However, rather than an amnesty bill being passed, the AHRC urges full and equal prosecution under existing criminal law for acts of violence committed during the protests and subsequent crackdown. The AHRC is concerned that if a blanket amnesty such as the current draft bill is passed, it will allow state officials who murdered citizens to evade being held to account. Given that the state prosecutor has already filed charges against former prime minister Abhisit Vejjajiva and former deputy prime minister Suthep Thaugsuban for their roles in ordering the killings, any amnesty that halts this process will amount to the direct obstruction of truth and justice. In addition to continuing with prosecutions against involved state officials, who have not been prosecuted to date, the AHRC urges review of the cases of Red Shirt activists who were prosecuted and sentenced to long prison terms related to their actions in the protests. In many cases, the accusations and prosecutions were highly politicized, and the AHRC is concerned that the judiciary may not have acted independently. Individuals who were prosecuted on the basis of their ideas, including those prosecuted under Article 112, the law which criminalizes alleged lese majeste, should be immediately released. The unprecedented documentation of information about the events of April-May 2010, including the ongoing inquest process, means that in comparison to prior instances of mass state violence in Thailand, there is an unprecedented opportunity to act in the service of justice and human rights, rather than the further entrenchment of impunity. This is an opportunity that must not be wasted.