Dr. Niran Pitakwatchara: “Thailand’s authoritarian system is incompatible with human rights.”

This interview was first published in Thai on 15 June 2016.

Dr. Niran Pitakwatchara was a commissioner of the National Human Rights Commission of Thailand (NHRC) from 2009 to 2015. During his post, he often collaborated with citizen groups in the Northeast, giving him experience and knowledge of the region’s human rights situation both before and after the 2014 coup.

The National Human Rights Commission of Thailand (NHRC) is an independent entity created by the 1997 constitution. The NHRC’s first commission took office in 2001, with the goal to investigate and prevent human rights abuses in the country. It has been instrumental in the struggle for human rights by citizen groups, gaining attention and sparking debate in society.

The Isaan Record (IR): Dr. Niran, how do you see Isaan society today?

Ever since the implementation of the first National Economic and Social Development Plan over 50 years ago, the agricultural sector [in Isaan] has changed from subsistence agriculture to commercial agriculture, supported by both formal and informal workers. However, basic living rights and the way of life still depend on natural resources, land, forests, and river basins, which support community-based economies. Therefore, Isaan people’s rights to make decisions are linked to the agricultural sector.

Of course, we have to mention the state’s policies that push for industrial development in the region. Agro-industries and various other industries affect the natural resources and environment. Building dams in the region’s river basins, planting commercial forests, agro-industry in the form of contract farming, and mineral concession projects affect the region’s natural resources and environmental conditions, all of which are important social capital for Isaan.

These policies reap benefits and allocate them to an elite minority. Most people in the region are out of options to sustain themselves. Groups of people that rely on fishing in the Mekong-Chi-Mun river basin can only make a living through contract fish farming [in hinged floating baskets] for large agro-industrial companies. Farmers who raise ducks, chickens, or pigs are trapped by the unethical conditions of the contract farming system. Agriculturalists are kicked off their land by the state’s forest and national park agencies, which claim that these farmers are invading and damaging conservation land — even though the farmers have been making a living in these areas before it was designated as protected land.

IR: Could you give us an overview of human rights abuses in Isaan during your tenure as commissioner?

Human rights abuses in Isaan include violations of civil rights, political rights, community rights, and those of ethnic groups (such as towards the Kui [Suai], Kaloeng, Tai Yo, Bru, Phu Tai, Sai, Saek, and other peoples). There are political conflicts, crisis-level violence, and violations of freedom of expression, especially regarding community rights. The government cannot solve these problems by announcing a state of emergency or enacting the Internal Security Act, which only worsen these conflicts and leads to more violence. For example, the arson of many provincial city halls in Isaan [in May 2010] and the ensuing arrests and court trials raise questions about the state official’s choice of actions and rights violations in the legal procedures.

Isaan is a very ethnically diverse region, including immigrants and refugees from Laos, Cambodia, and Vietnam. Immigrant groups are very often subjected to rights violations because they do not have Thai citizenship even after having lived here for two or three generations. Therefore, immigrant rights regarding travel, labor, and even education or health are restricted and violated.

Violation of rights to use and manage natural resources and the environment is also an important issue in Isaan. Management of water resources in the Mekong-Chi-Mun river basin and the construction dams, weirs, and canals violates the livelihood rights of farmer in the region who live according to the local fish-based river basin culture. The region is the birthplace of the pla ra pla daek (fermented fish) culture.

Rights violations in areas people depend on to make a living are also an important issue, since the relevant departments of the state, such as the Royal Forest Department and the Department of National Park, Wildlife, and Plant Conservation, do not understand or acknowledge peoples’ community rights in using the area for their livelihoods. Even though there are official community land deed projects following the procedure of the Prime Minister’s Office to ensure community rights, villagers are still constantly being evicted or sued [for trespassing.]

IR: After the 2014 coup, did the nature of human rights violations in Isaan change?

After the 22 May 2014 coup, [the NCPO] employed martial law for one year and then switched to Article 44 of the interim constitution of 2014. [During this period] human rights violations multiplied in violence, compared to pre-coup violations. Gatherings to express opinions were prohibited, including political gatherings and those that focused on other issues, such as natural resources or energy management. The NCPO claimed that these gatherings disturbed the peace [in society.]

In addition, the NCPO’s policy to reclaim forest areas, which was implemented according to martial law Orders 64 and 66 in 2014, severely disrupted the lives of citizens and inhabitants in many Isaan provinces. There were over 60 official complaints from villagers who were evicted from their land. This happened even though Article 66 states that the NCPO would give special consideration of aid to individuals suffering from poverty, landless people, and other disadvantaged groups. For example, the issue of the gold mine in Loei province’s Wang Saphung District shows that the authorities do not understand the citizens’ rights to participation. The mining company, in protecting the natural asset of its gold mine, viewed the villagers as disruptive and causing instability. Instead, it should have solved this conflict of natural resource and environmental management based on community rights, social ethics, and stable development.

These sorts of events have also become a widespread problem through the petroleum exploration projects in many Isaan provinces, such as Sakon Nakhon, Khon Kaen, Udon Thani, Kalasin, and Buriram. Citizens are distressed because private petroleum exploration companies often treat them unethically.

To sum up, in the times of post-coup authoritarianism, there is a lack of understanding of human rights. This authoritarianism prevents citizens from exercising participatory rights, and instead, it sticks to “power” as the law, while neglecting the principle of “justice” in the legal process. Therefore, the human rights situation in Isaan is still very much a cause of concern.

IR: In the Northeast, are there any rights groups to keep an eye on? Could they act as a role model for other groups?

In the past, there used to be organizations and networks to manage the river basins, such as the groups protesting the construction of the Pak Mun Dam and Rasi Salai Dam for more than two decades. And then there are various land reform groups who have been fighting for community rights to own and inhabit land in both northern and southern Isaan.

As for the past decade, networks and organizations focusing on mineral management in the region have been founded, such as the Udon Thani environmental conservation group that opposes a potash mine project in the province. Most recently, citizen network organizations in Kalasin, Buriram, Sakon Nakhon, and Khon Kaen have joined to campaign and protest against the petroleum exploration concession projects, which often violate community and developmental rights.

Those carrying out these projects refuse to take responsibility for impacting local communities, for example by not offering compensation payments or [reversing negative impacts] on the agricultural sector. What’s worse, these projects cause people in the community to fall ill due to toxic emissions, such as in the area surrounding the Wang Saphung gold mine where high levels of cyanide, manganese, and cadmium have been found in villagers’ blood, soil and the environment—in the flora and fauna, and even communal drinking water.

In summary, the state has worked as a public relation manager to Thai and foreign companies, allowing them to violate rights to development and destroying stable and sustainable development [in the area]. This is also connected to another problem: economic disparity. Wealth is owned by a small elite group whereas the rest of the people remain poor, which affects health and public welfare security in local communities. Some villages have reached the point where they have had to migrate, which [often] leads to a break up of the community.

IR: What about the red shirt-yellow shirt issue?

The networks that fight for civil rights and political rights on both ends of the spectrum—that is, “We Love Thaksin” and “Thaksin Get Out”— have democratic ideals that are both different and similar. But it still depends on whether these two groups will be willing to put aside their differences and unite on a stronger front, and to what extent this will happen.

The interesting thing is that both Yellow and Red groups have had their community rights violated by state agencies and state developmental policies, both before and after the coup. [We can see evidence of this in] the potash mining case, gold mine incidents, petroleum explorations, the policy to reclaim the forests, and creation of Special Economic Zones in Mukdahan and Nong Khai provinces.

As a tentative conclusion, I think that the fight against economic disparity and in support of socio-political justice will help citizen networks, civil society groups, and academics unite to fight against the state’s unjust, human rights-violating power.

IR: How does the lèse-majesté law affect the human rights situation in the country?

When we talk about human rights violations in relation to Article 112, which has statistically increased during times of conflict and political turmoil in the past decade, we have to understand that a big problem lies in the enforcement of this law. There has to be a differentiation between “freedom of speech” and “defaming, insulting, or threatening the monarchy.” Recently, there has also been the implementation of the Computer Crime Act, especially relevant are Articles 14, 15, and 16. Both of these laws are used to limit the expressions of political dissidents by referencing the monarchy.

His Majesty the King gave a speech on 4 December 2005, on the topic “The king can do no wrong” which conveyed that the King can be critiqued. During the times of the absolute monarchy, the law stated that a truthful critique was allowed, and lèse-majesté offences resulted in prison sentences of no more than seven years. However, in the democratic era after 6 October 1976, the penal law for Article 112 changed the jail sentence to three to 15 years. That is because Thai society does not accept people with differing political views. Instead, people judge them as being traitors and enemies of that state that must be punished with death and death only.

Let me give you some examples: Haji Sulong, father of Den Tohmeena, who was [allegedly] executed by drowning [in 1954], the killing of the four Isaan cabinet members [in 1949], or the 6 October 1976 [incident at Thammasat University]. Pridi Banomyong wrote an article about the strategy of accusing political opponents of lèse-majesté violations in order to eliminate them. He coined such actions “ultra royalist,” and Thongchai Winichakul called it “hyper royalism.” Both of these academics wanted to remind Thai society to be conscientious [of this issue] rather than dragging the monarchy into politics.

In a democratic system, “the monarch reigns, but does not rule.”  Therefore, loyalty must be within limits. The monarchy should not be used as a tool for political persecution. Doing this will prove detrimental, rather than beneficial, to the monarchy. Instead of being honored and respected, such actions contribute to destroying the institution.

IR: Were you involved in providing support to Patiwat Saraiyaem, the Khon Kaen University student who was sentenced to prison for his role in “The Wolf’s Bride” play, which a court ruled offensive to the monarchy?

As a commissioner on the National Human Rights Commission, I was [also] the president of the subcommittee for civil and political rights. I received the case’s facts about the two accused people—Patiwat Saraiyaem and Pornthip Munkong—at the prison. Both were charged with breaking Article 112 of the Criminal Code.

When cases are brought to court, NHRC members cannot investigate or override the court’s duties. This is according to the NHRC’s procedures. Therefore, the Court of Justice has to continue the legal process. The NHRC can only continue the investigation when the issue or the case differs from the one the court is deciding on. For example, the issue of torture and the health of the prisoners’ health within the jail were two issues raised periodically that allowed us to investigate.

IR: In cases when the NHRC is unable to provide much support to the accused, how can commissioners help common citizens?

The duty of the NHRC is to protect, support, and defend common people, or else we would not be worthy of our name. We should be like a doctor watches over our patients’ lives, not ones who sides with the capitalists or drags out our patients’ illnesses to make more money off them by prolonging the medical care—these types of “doctors” are no doctors at all.

The NHRC has three main jobs. The first is investigating acts of human rights abuses. When a complaint or petition is submitted to the NHRC, we have the legal authority to request the necessary documents to investigate the case, as well as appealing to the state and private sector to issue public statements. This opens up a space to provide information to the public about the case, as well as allowing people to express their views on the issue and question state and private actors.

The second job is going into the field to fact-check and receive supporting information. At the same time, it gives us the chance to educate people about human rights and the vision of being a human rights defender based on the principle of people’s participatory rights, as an important principle of human rights is that every right has to be fought for.

Finally, it is the NHRC’s duty to propose policies and laws to protect and safeguard human rights, which is no less important than investigating human rights abuses. If we come across a structural problem created by policies or laws [that allow human rights abuses to occur], it is our job to propose policies or laws that can safeguard human rights. We present our proposals directly to the Prime Minister or Parliament.

Moreover, in many cases, villagers’ rights are violated by the justice system when they are accused by actors in the state or private sector. The NHRC has prepared investigative reports on cases like the land [rights] problems in Lamphun [province], global warming-related incidents, the case of the navy suing the Phuketwan journalists [Chutima Sidasathian and Alan Morison], and the recent cases of political gatherings. [These reports] can be used as evidence in court. NHRC members can also be witnesses in court, or even use their position as bail for a defendant.

I’d like to reiterate that, the NHRC’s work must be villager and community-centric. Communities must participate to solve problems of human rights violations. We call these villagers “human rights volunteers” or “fighters/defenders of human rights.”

IR: What do you think of Meechai Ruchuphan’s draft constitution in terms of rights and freedoms?

In principle, a constitution is the supreme law in a democratic system, and must consist of three main sets of principles. The first set of principles concerns the citizens’ rights, freedoms, and equality. The second set of principles relate to checks and balances on the state’s use of power. The third set is about the stability and efficiency of the government.

All three sets of principles were outlined in the1997 [constitution] already, but when they were adjusted in 2007, we have to admit that the principles of rights, freedom, and citizen participation became more complete and whole. Therefore, the continual development of human rights principles in Thailand during the past two decades has been consistent with the tenets of “sovereignty belongs to the people,” “constitutional state,” and “rule of law.” Justice is the law, and human rights principles guarantee the law’s fairness.

However, Mr. Meechai’s draft constitution uses a new set of principles which do not require the state’s duties to be explained by rights.

Using these principles will create the problem of “people with more privileged rights ” who receive special benefits or powers that is supported and protected by constitutional law, as well as the courts that uphold it as a precedent for judicial discretion.

Constitutional rights are rights that tie together various organizations that employ state power—from law enforcement, legislative bodies to judicial ones. These organizations must respect and protect these constitutional rights. While the 2007 charter promulgated [constitutional rights] quite thoroughly and wholly, government agencies and the administration were often unwilling to proceed according to the human rights principles in the constitution. Instead, they mainly referred to the government agency’s laws even though Article 6 of the 2007 constitution clearly stated “the constitution is the supreme law of state. The provisions of any law, rule, or regulation which are contrary to or inconsistent with this constitution, shall be unenforceable.”

IR: What about the role of the National Human Rights Commission?

There have been some adjustments regarding the recruitment of the NHRC in that representatives of private human rights organizations must participate in the selection process. However, when looking at the authority of the NHRC, it shall, in addition, now also investigate and correct false or unethical reporting regarding a human rights situation in the country in a timely manner. This point has not been specified before because the [NHRC] never reported the human rights situation in the country wrongfully or unfairly.

At the same time it is the duty of the government to [follow] the UN reporting system on human rights situations, such as the Universal Periodic Review reports, economic reports, social reports, or civil and political rights reports. [The Thai government] as [the head of] a member state must appoint a representative [to the UN] to continuously report on the government’s work. So, it is not the NHRC’s job to do the reporting. The NHRC only investigates the state and private sectors but we are not a state agency that makes excuses for the government. Doing so would violate the NHRC’s spirit and lessen the organization’s credibility, and eventually affect the Thai state’s credibility as well.

There have also been new provisions [to the charter] for the NHRC to conduct its actions whilst upholding the citizens’ well-being and the public interests of the country as a whole. Of course, this objective is very vague and open to interpretation, unlike national human rights organizations in other countries that all have very clear objectives in righteously supporting, protecting, and defending the people’s benefits, rights, human dignity, and equality—which are of the greatest importance.

 

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