Recently, Thailand passed an important human rights law following significant pressure from many parties including NGOs, victims of torture, relatives of the dead and missing, and investigative journalists. On 24 October 2022, the King signed into law the Prevention and Suppression of Torture and Enforced Disappearances Act which Parliament enacted on 26 August 2022. This was a significant event as Thailand has a history of enforced disappearances and torture. The legislative progress was exceedingly slow. Thailand acceded to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in October 2007 and signed the International Convention for the Protection of All Persons from Enforced Disappearance (CED) in January 2012 but did not proceed to ratification.

History of torture, deaths and enforced disappearances

A significant number of deaths and disappearances of alleged communists at the hands of the Communist Suppression Operations Command occurred in the southern Thai province of Phattalung. Despite being acknowledged by the Ministry of the Interior, no one was ever punished. On 6 October 1976, a student protest at Thammasat University was broken up by the military, which attacked the campus with rockets, handguns and anti-tank missiles. Some students were killed by gunfire, lynched, raped or burnt alive. Around 8,000 protestors were arrested, placed in a special military prison, and tortured. Under the military law at the time of their trial in October 1977, they were not allowed legal representation, and there was no right of appeal. In April 2004, over 100 militants were killed while making coordinated attacks on security posts in Southern Thailand. Thirty-two were killed at point-blank range inside the Kru-Ze mosque in Pattani.

During 2004–2013, the National Human Rights Commission received 88 petitions concerning officials committing torture. Sixty-eight petitions originated in the southern provinces bordering Malaysia. In a separate study, Amnesty International similarly documented 24 individual cases of torture or other ill-treatment in southern Thailand between 2013 and 2015. The military conducted most cases of torture with occasional police support. Victims were all male Muslims, usually under 30 years of age, and they were alleged to have committed national security offences.

During the current Prayut Chan-o-cha government, some anti-government political activists were detained for investigation. Some were invited by the government ‘to adjust their attitudes’, and others were unfairly prosecuted. These actions are contrary to the Universal Declaration of Human Rights, as they contradict the law on the freedom of speech, a fundamental human right and also contrary to the Thai Constitution. Amnesty International studied the Thai concept of ‘attitude adjustment’, which was particularly prevalent following the coup d’état. Their focus was on the first 100 days following the coup in 2014. The actual numbers could be higher than those that were verified. Six hundred sixty-five persons were ‘invited’ (i.e. ordered) to report for attitude adjustment, to adjust their way of thinking, and/or detained and arrested. Of these, 571 were ordered to report to the National Council for Peace and Order, and 242 were detained. A total of 86 faced criminal prosecution, with the majority (61) tried in a Military Court despite being civilians. A total of 14 were charged with lèse-majesté.

The Thai government appears to use disappearances and extra-judicial killings to silence its critics. Evidence is difficult to find, and the truth is never discovered. Moreover, before the act, no legislation explicitly addressed enforced disappearances. Some confirmed disappearances in Thailand are outlined below.

An early recorded case was that of Tiang Sirikhan, a politician who disappeared in 1952. Eventually, an investigation found that police had arrested him and four others. His body was burnt, and three police officers were sentenced to life imprisonment for his murder.

Several cases have involved the disappearances of Muslim citizens in southern Thailand. For instance, in 1954, Haji Su long Toh-me-na was a famous Muslim teacher and disappeared as he was travelling to visit a police station. His body was dumped in Songkhla Lake, and several police officers were found guilty of his murder. Somchai Neelaphaijit, a lawyer, acted in cases of human rights abuses against the security forces in the southern border provinces and disappeared in 2004. Later, five people were prosecuted concerning his disappearance.

Other cases involved activists such as Paul Jirakjongcharoen (Billy), a Baan Bang Kloy Karen ethnic group leader who fought for the right to access arable land. He disappeared in 2014. A witness testified that they last saw him with a former head of Kaeng Krachan National Park, and his bones were found in an oil tank submerged under a suspension bridge in the park. The Public Prosecutor considered that more robust evidence was required to be sure of obtaining a conviction. Dan Khamlae, a leader of the Khok Yao Community, disappeared in 2016, and his bones were discovered in the forest. DNA testing confirmed his identity but could not determine the cause of the death or the people involved. Vuttipong Kochathamakun (Ko Tee) was a community radio host and political activist. He sought asylum in Laos after being accused of lèse-majesté. He disappeared from his accommodation in Laos in June 2017. The Thai government refused to act, and his fate is unknown.

Wanchalearm Sattayasaksit is the ninth refugee who disappeared after the NCPO coup in 2014, with at least 104 people fleeing the country following the seizure of power. On 3 June 2020, Line Today reported that Wanchalerm posted a 53-second video clip attacking the Thai government. The next day Wanchalerm was abducted whilst walking to buy food in front of his accommodation in Phnom Penh. It has not been possible to confirm whether or not he is alive or dead.

Even more disturbing is that even whilst the bill was being discussed in Parliament, Jeerapong Thanapat, 24, was allegedly suffocated to death in police custody on 4 August 2021. The local police chief was caught on video leading the torture, and CCTV was leaked to a solicitor. Colonel Thitisan Utthanaphon and six other officers were subsequently charged with murder, extortion, dereliction of duty and confining a person against their will. Colonel Utthanaphon was found guilty and sentenced to life imprisonment.

Why such a long delay between the signing of the Conventions and the Passing of Legislation? The authors have argued that

the delay between signing the Conventions, preparing the relevant legislation, and finally passing the legislation may be [political]. . .[T]he Thai government under Prime Minister Prayut Chan-o-cha, who has been Prime Minister since the coup in 2014, seems to the authors to avoid any discussion concerning the political demands raised by opposition groups in Thailand. We suggest that the Government inaction was merely buying time so that the law did not really take effect. The inaction meant that officers who work under the [government’s order] might avoid being investigated.

Compliance of the Thai Legislation with the Conventions

An analysis of the act by the authors has noted that there are major areas of compliance, but the Thai legislation contains some deficiencies:

1. Whilst the act also includes a section prohibiting the Thai government from expelling, deporting, or extraditing “a person to another country where there are substantial grounds for believing that the person would be in danger of torture, cruel, inhuman, or degrading treatment, or enforced disappearance” there is no Thai law that strictly applies to this situation;
2. Under the act, there is nothing to prevent prosecutors in legal cases from using evidence that has been obtained from torture, cruel acts or inhumane or degrading treatment or making a person disappear except as evidence for cases under this law; and
3. The act does not state that a government official needs to declare to the suspect their rights before detention.

An independent review by the International Commission of Jurists and Amnesty International following the passing of the act raised several additional concerns, including:

1. the definition of torture in the act is more restrictive than in CAT;
2. the definition of “enforced disappearance” in the act should replace the term ‘public official denied committing” an offence with “public official failed to acknowledge or refused to acknowledge” as in CED;
3. regretted that the definition of enforced disappearances did not also include a “provision requiring the effective investigation and prosecution of persons identified as responsible for an act of enforced disappearance, where the act had been committed by persons or groups of persons acting without the authorization, support or acquiescence of the State and to bring those responsible to justice as provided in CED”;
4. regretted the clause on the prohibition on granting an amnesty to offenders was removed during the Parliament’s deliberations; and
5. regretted the absence of provisions regulating the statute of limitation.

Conclusion

As stated in our article in the Australian Journal of Human Rights: “Failure to implement the provisions of the law by all parties would be a gross violation of the people’s faith in the institutions of government. The current state of impunity must cease immediately.”

Dr. Robert Smith is an international development consultant with a Ph.D. in Engineering and an MPhil in law and is currently a Ph.D. candidate in law at the University of New England, Australia. His research interests are social media law, especially fake news, international development, and intellectual property law.

Dr. Nucharee Smith is an Assistant Professor in law at Kasetsart University, Chalermphrakiat Sakon Nakhon Province Campus, Thailand. Her research interests are International Law, including International Trade Law.