THAILAND: Revocation of passports by junta restricts freedom of movement and creates spectre of statelessness

ข้อกำหนดของสหประชาชาติที่คณะรัฐประหารละเมิดได้มีการให้ตัวอย่างไว้ด้วย จึงได้ขีดเส้นบนและเส้นล่าง แบ่งแสดงเอาไว้ เป็นแนวทางในการอ่าน สรุปรวมได้สั้นๆว่า การถอนหนังสือเดินทางนั้นไม่ชอบด้วยกติกาสากลที่ประเทศไทย (รวมทั้งประเทศอื่นๆ)ที่ได้ทำไว้ร่วมกัน

http://www.humanrights.asia/news/ahrc-news/AHRC-STM-135-2014

The Asian Human Rights Commission is gravely concerned that during the past two weeks, the National Council for Peace and Order (NCPO), the ruling military junta, has revoked the passports of at least nine Thai citizens. According to reports from Prachatai and statements from the Ministry of Affairs, the passports of Junya Yimprasert, Somsak Jeamteerasakul, Pavin Chachavalpongpun, Jakrapob Penkair, Charupong Ruangsuwan, Sunai Julapongsathorn, Chatwadee Amornpat, Ekapop Luara, and Atthachai Anantamek, have been revoked following their decisions to not report to the junta’s summons. The revocation of passports operates as a coercive measure designed to ensure compliance with the junta’s orders and amounts to the restriction of freedom of movement of all of these persons, and in the cases of those who currently reside outside Thailand, making them into de factostateless persons.

While this action has been justified by the junta and the Ministry of Foreign Affairs under the Ministry’s 2005 Regulations on the Issuance of Passports, the Asian Human Rights Commission’s assessment is that the revocation of these passports in the politicized and increasingly lawless atmosphere following the 22 May 2014 coup is a derogation of Thailand’s responsibilities as a state party to the International Covenant on Civil and Political Rights (ICCPR). In all of these cases, reports indicate that the Ministry of Foreign Affairs has relied on Section 23(2) in connection with Section 21(2) of the Ministry of Foreign Affairs’ 2005 Regulations on the Issuance of Passports, which permits the revocation of a passport once an arrest warrant has been issued. Section 23(2) stipulates that, “Officials may revoke and recall a passport when the below occurs:  (2) The passport holder is an individual for whom the officials may not issue a passport in line with Section 21 (2), (3), and (4)” (unofficial AHRC translation). Section 21 (2) stipulates that,“Officials are able to deny or inhibit the request or amend a passport in the following cases: (2) When the requestor is someone who is undergoing punishment in a criminal case, or is on temporary release, or is a person who is a defendant in a criminal case in which an arrest warrant has been issued, that the court or the administrative officials or the police view that a passport should not be issued” (unofficial AHRC translation).

In all of these cases, arrest warrants have been issued for the individuals following their decisions not to report to the junta following summons. Those who have reported followed summons have, at a minimum, been interrogated and forced to sign a statement that they will cease political activities and will not leave the country without the junta’s permission, and in many cases, have been arbitrarily detained by the junta for periods of up to seven days, the maximum permitted under martial law. While the junta has repeatedly claimed that those who are summoned and then held are not being detained, but are instead being offered “accommodation” and “attitude adjustment,” the penalty for not responding to the summons is possible processing within the military court system and a punishment of a prison sentence of up to two years and/or a fine of up to 40,000 baht. The issuance of arrest warrants and the revocation of passports following non-response to the summons further confirms that the junta is engaging in arbitrary arrest and detention, regardless of the name they wish to attach to it.

In some of the cases of those whose passports have been revoked, there are other pending investigations or charges, including under Article 112, the section of the Thai Criminal Code which criminalizes any speech or acts deemed to insult the king, queen, heir-apparent, or regent. The Asian Legal Resource Centre, which the sister organization of the Asian Human Rights Commission, has repeatedly outlined the threats to human rights posed by Article 112 in a series of submissions to the United Nations Human Rights Council (The most recent of these statements can be read here: ALRC-CWS-25-07-2014.)

 

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While the Ministry of Foreign Affairs’ 2005 Regulations on the Issuance of Passports provides the NCPO with a legal basis within Thai law to carry out the revocations, the assessment of the AHRC is that this constitutes a derogation of Thailand’s obligations as a state party to the International Covenant on Civil and Political Rights (ICCPR). In particular, Article 12 stipulates that,

“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

4. No one shall be arbitrarily deprived of the right to enter his own country.”

Without explicit justification under Article 12 (3), the revocation of a passport is a violation of Article 12 (2). The revocation of passports by the NCPO is a clear and arbitrary violation of Article 12 (2) of the ICCPR.

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General Comment No. 27 on Article 12 by the Human Rights Committee of the United Nations begins by noting that, “Liberty of movement is an indispensable condition for the free development of a person.” The Committee continues and comments with respect to Article 12 (2), that, “Since international travel usually requires appropriate documents, in particular a passport, the right to leave a country must include the right to obtain the necessary travel documents. The issuing of passports is normally incumbent on the State of nationality of the individual. The refusal by a State to issue a passport or prolong its validity for a national residing abroad may deprive this person of the right to leave the country of residence and to travel elsewhere. It is no justification for the State to claim that its national would be able to return to its territory without a passport.” With respect to restrictions permissible under Article 12 (3), the Committee emphasizes the importance of proportionality, and notes that, “it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.” In addition, in a United Nations High Commission for Refugees report on “UNHCR and De Facto Statelessness,” de facto stateless persons are defined as those who, “are persons outside the country of their nationality who are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country.” For those currently residing outside Thailand whose passports have been revoked, such as Pavin Chachavalpongpun who is a critic and academic based at Kyoto University in Japan, the revocation of his passport amounts to making him a de facto stateless person. The view of the Asian Human Rights Commission is that the revocation of passports and creation of de facto statelessness in reaction to non-response to summons by the junta is in excess of the principle of proportionality and constitutes a retaliatory measure intended to punish those who have not complied with the junta’s orders.

While the junta has claimed, through the use of martial law, that the current social and political situation represents a public emergency in which the derogation of responsibilities under the ICCPR is permitted, the AHRC’s assessment is that no such situation exists in Thailand at this time. Despite the country’s ongoing political unrest, much of which dates to the prior coup in September 2006, it is beholden on the civilian authorities to deal with that unrest in accordance with ordinary procedures. Further, while the revocation of the passports has been carried out in line with the Ministry of Foreign Affairs’ regulations, the AHRC would like to note that the criminal charges brought against these nine individuals are raise significant questions about the status of the rule of law in Thailand. In particular, the use of Article 112, the measure which criminalizes alleged defamation, insult, or threat to the king, queen, heir-apparent, or regent, is a highly-politicized measure which has been used extensively in the last six years to persecute those who exercise the right to freedom of expression, as well as those who work to protect those who do so. The revocation of the passports of these nine individuals, who include human rights defenders (Junya Yimprasert) and scholars (Somsak Jeamteerasakul and Pavin Chachavalpongpun) who are clearly being targeted for their dissident ideas, only confirms that the junta is acting in excess of its authority with respect to international human rights law. To think differently than the junta is not a legitimate crime.

During the seven weeks since the NCPO took power on 22 May 2014, there has been a marked constriction of freedom of expression and political freedom, and a significant decline in the broad human rights situation in Thailand. Those whose passports have been revoked are forced to either submit to proceedings in the military court system (See the AHRC’s letter on military courts to the United Nations Special Procedure mandate holders on 2 June 2014: AHRC-OLT-006-2014)  or be forced remain outside the country or in hiding inside the country. The price of full citizenship under the current regime is submission to the arbitrary exercise of power by the junta.

The AHRC would like to reiterate our unequivocal condemnation of the coup by the NCPO in the strongest terms. The AHRC calls on the NCPO and the Ministry of Foreign Affairs to immediately reinstate the passports of Junya Yimprasert, Somsak Jeamteerasakul, Pavin Chachavalpongpun, Jakrapob Penkair, Charupong Ruangsuwan, Sunai Julapongsathorn, Chatwadee Amornpat, Ekapop Luara, and Atthachai Anantamek, and to cease revoking passports as a method of compelling compliance and creating fear.

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