On the 25th of October 2022, the Prevention and Suppression of Torture and Enforced Disappearance Act, more commonly known as the Thailand Anti-Torture Act, was announced in the Royal Gazette. The Act constitutes not only the first legal framework to address torture and other forms of ill-treatment in the country, but it could also represent a turning point for refugees currently present in Thailand and who face the risk of repatriation.
A long-awaited Act
The content of the law officially criminalises torture and forced and forced disappearance, modifying Thailand’s legal framework to appropriately respond to such crimes. Thailand is no stranger to cases of torture and forced disappearance, according to the UN Working Group on Enforced or Involuntary Disappearances, between 1980 and August 2022, were registered in the country 92 cases of alleged enforced disappearance, of which 76 are currently unresolved. One of the recently memorable cases is the one regarding the disappearance of the Karen environmental and community activist Porlajee “Billy” Rakchongcharoen, who went missing in 2014. As for torture, during the pro-democracy protests that took place in 2021, several activists, including Attasith Nussa, 35, and Weeraphap Wongsaman, 18, denounced brutal mistreatments at the hands of the police while under arrest. While the Antitorture Act is an important step forward in addressing torture and forced disappearance in the country, an analysis from the International Commission of Jurists and Amnesty International has highlighted a few shortcomings in the approved document, such as the absence of a definition of torture and enforced disappearance in line with international law, as well as provisions containing prescriptions for torture and enforced disappearance crimes that are fully compliant with UNCAT and ICPPED.
Thailand ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 2007. By ratifying the Convention, specifically referring to articles 4 and5, Thailand agreed to recognise any act of torture or attempt to commit torture as a criminal offence and implement the appropriate measures to counter it within its juridical system, however, since then the process has been slowed down by constant delays. The law has been close to being enacted for the first time in 2018, when it was approved by the National Legislative Assembly (“NLA”) in its first reading, only to be withdrawn due to the long delays and extension of deadlines,before Thailand’s general election of 2019. A final draft of the law was approved by the members of the House of Representatives in February 2022, with 359 votes in favour, one abstention and two deciding not to vote. The law was officially published in the Royal Gazette on the 25th of October 2022, and it was expected to be fully enacted by the 22nd of February 2023, 120 days after its publishment and almost a year after the final draft was approved by the Parliament. However, on the 14th of February, the government approved an extension delaying the enaction of a critical part of the law, specifically articles 22 to 25, which provide measures specifically directed at the police forces, such as establishing the use of body cameras, as well as minimum measures to treat individuals in detention, to reduce police’s use of violence and abduction to extort confessions. The decision might be a direct consequence of the police forces’ claims of insufficient time to be ready for the new measures and has risen worry and disapproval from the public.
What can change for Myanmar refugees in the country?
Among the changes the law brings to the Thai legal framework, there’s one particularly deserving of analysis. The thirteentharticle of the Antitorture Act establishes that “No government organizations or public officials shall expel, deport, or extradite 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”. The article has the potential to greatly improve the conditions of refugees currently residing in the country, including Myanmarrefugees currently residing in Thailand after crossing the border separating the two countries, who have until now faced the risk of repatriation. Since the military coup perpetrated by the military Junta led by Min Aung Hlaing, Myanmar has plunged into what is effectively a civil war and its citizens have faced a crescendo of abuse and violence. According to UNHCR, since the coup in 2021 and as of February 2023, approximately 22,000 Myanmarrefugees have crossed the border with Thailand seeking refuge. Thailand isn’t among the signatories of the 1951 Refugee Convention, which means that people seeking refuge in the country might be considered illegal aliens and risk repatriation, since the coup many have denounced the attempts by the Thai authorities to forcefully push them back to Myanmar. If the article is accompanied by an effective implementation strategy, the risk of repatriation for Myanmar refugees and refugees, in general,would decrease, nonetheless, certain obstacles might need to be kept in mind. The first challenge is linked to the document, beside article 13th Thailand doesn’t have an appropriate law that can support the article in assessing measures for granting refugee status to individuals crossing the border, which makes it unclear whether Thailand’s officials will cooperate with international organisations such as the UNHCR to analyse asylum requests or proceed on a case by case strategy taking into account the internal status of the country of provenience of each individual, which leads to the next issue. Since the coup, Thailand’s government, led by General Prayut Chan-o-cha, has engaged in friendly exchanges with his counterpart from Myanmar, despite the increase in violence and clashes along the border and the more assertive positions of other ASEAN members, often refraining from criticising the junta; the ties between the two governments and Thailand’s curreent diplomatic strategy could play a crucial role in how the country could engage with refugees fleeing from its neighbour.
On the 18th of May, Thailand’s constitutional court struck down the government’s decree delaying the enforcement as unconstitutional and the decision was followed by an assurance from the Royal Thai police that it will enforce the law. A panel was appointed by the government to lay down regulations related to the Act. It is hoped that successful implementation of the act will serve as a shield for the most vulnerable sections of the society. In early September 2023, the new Thai government was sworn-in under the leadership of Prime Minister Srettha Thavisin. Establishment of effective implementation strategies will be a key responsibilityfor the new government, which makes its role and intentionscrucial given what they do with the Act.