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Penkair, Charupong Ruangsuwan, Sunai Julapongsathorn, Chatwadee Amornpat, Ekapop Luara, and Atthachai Anantamek, have been revoked following their decisions to not report to the junta’s summons.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.

THAILAND: Legal and Extralegal Threats to Freedom of Expression

ALRC-CWS-25-07-2014

February 24, 2014

http://www.humanrights.asia/news/alrc-news/human-rights-council/hrc25/ALRC-CWS-25-07-2014

HUMAN RIGHTS COUNCIL

Twenty fifth session, Agenda Item 3, General Debate

A written submission to the UN Human Rights Council by the Asian
Legal Resource Centre

THAILAND: Legal and Extralegal Threats to Freedom of Expression

The Asian Legal Resource Centre (ALRC) wishes to raise grave
concerns about the intensification of legal and extralegal threats to
freedom of expression in Thailand. Carried out in the name of
protecting the monarchy, this range of threats constitutes the
entrenchment of the normalization of the violation of human rights and
curtailment of freedom of expression. This statement is the eighth on
this topic that the ALRC has submitted to the Council since May 2011.
During the seventeenth session of the Council in May 2011, the ALRC
highlighted the rise in the legal and unofficial use of Article 112 of
the Criminal Code and the 2007 Computer Crimes Act (CCA) to constrict
freedom of expression and intimidate citizens critical of the monarchy
(A/HRC/17/NGO/27). During the nineteenth session in February 2012, the
ALRC detailed some of the threats faced both by those who have
expressed critical views of the monarchy, both legal and extralegal,
as well as those who have expressed concern about these threats
(A/HRC/19/NGO/55). During the twentieth session in June 2012, the ALRC
raised concerns about the weak evidentiary basis of convictions made
under Article 112 and the CCA (A/HRC/20/NGO/37) and the concerning
conditions surrounding the death in prison custody of Amphon
Tangnoppakul on 8 May 2012, then serving a 20-year sentence for four
alleged violations of Article 112 and the CCA (A/HRC/20/NGO/38).
During the twenty-second session in March 2013, the ALRC highlighted
the January 2013 conviction under Article 112 of human rights defender
and labour rights activist Somyot Prueksakasemsuk (A/HRC/22/NGO/44).
During the twenty-third session in June 2013, the ALRC emphasized the
regularization of the crisis of freedom of expression, and noted that
constriction of speech had become constitutive of political and social
life in Thailand (A/HRC/23/NGO/42). During the twenty-fourth session
in October 2013, the ALRC emphasized the dangers of the normalization
of the violation of human rights in the name of protecting the
monarchy (A/HRC/24/NGO/35).

Over the course of the prior seven statements, the ALRC first noted
with surprise the active use of measures to constrict speech, then
tracked the expansion of this use, and finally, the entrenchment of
the foreclosure of freedom of speech. The ALRC is again raising the
issue of freedom of expression with the Council because the law has
continued to be actively used to violate the right to freedom of
expression and extralegal threats to freedom of expression, and human
rights broadly, have emerged in Thailand. In the statement submitted
to the Council in October 2013, the ALRC warned that the routine
denial of bail and the use of vague references to national security to
attempt to legitimize the violation of the human rights of those with
dissident views had become normalized. In this statement, the ALRC
wishes to alert the Human Rights Council to ongoing developments that
indicate the urgency, and growing difficulty, of addressing the crisis
of freedom of expression in Thailand.

There are two primary laws that are used to both legally constrict
freedom of speech in Thailand and create a broad climate of fear for
those who hold dissenting opinions. Article 112 of the Criminal Code
criminalizes criticism of the monarchy and mandates that, “Whoever
defames, insults or threatens the King, Queen, the Heir-apparent or
the Regent, shall be punished with imprisonment of three to fifteen
years.” The 2007 Computer Crimes Act (CCA), which was promulgated as
part of Thailand’s compliance as a signatory to the United Nations
Convention Against Transnational Organized Crime, has been used to
target web editors and websites identified as critical of the monarchy
or dissident in other ways. The CCA provides for penalties of up to
five years per count in cases that are judged to have involved the
dissemination or hosting of information deemed threatening to national
security, of which the institution of the monarchy is identified as a
key part. While Article 112 has been part of the Criminal Code since
the last major revision in 1957, available statistics suggest that
there has been a dramatic increase in the number of complaints filed
since the 19 September 2006 coup; how often these complaints become
formal charges and lead to prosecutions is information that the
Government of Thailand has continuously failed to provide up to the
present. The CCA has often been used in combination with Article 112
in the seven years since its promulgation; similar to the use of
Article 112, the Government of Thailand has not made complete usage
information available. This failure to make information public about
the frequency and conditions of use of both laws creates fear and
diminishes the space for freedom of expression through the use of
secrecy and creation of uncertainty.

In addition to the continued use of the law to constrict speech,
recent events indicate that there is an increase in the potential for
extralegal violence against those who hold dissident views. During the
statement submitted to the nineteenth session (A/HRC/19/NGO/55) in
March 2012, the ALRC warned the Council about the threats made against
members of the Khana Nitirat, a group of progressive legal academics
at Thammasat University who proposed reform of Article 112. In
response, hundreds of threats were posted online against the group,
calling for the members to be attacked, killed, beheaded, and burned
alive. Subsequently, one of the members of the group, Professor
Worachet Pakeerut, was assaulted outside his office at Thammasat by
two young men who later told the police that they attacked him because
they disagreed with his ideas.

On February 12, 2014, an attack on another progressive academic,
Professor Somsak Jeamteerasakul, a history professor at Thammasat
University and outspoken political and cultural critic, indicates a
renewed increase in the permissive climate for extralegal intimidation
and violence of those who hold dissenting opinions. Two assailants
fired repeated gunshots at the home and car of Professor Somsak.
Although he did not sustain any physical injuries, the damage to his
car and house indicate that the violence was intended to be deadly.
The attack took place during the day, while Professor Somsak was at
home, which lends further credence to the idea that the perpetrators
intended to inflict harm or death and that they were unconcerned with
being seen.

Professor Somsak Jeamteerasakul’s writing and teaching have inspired
many students and citizens to carefully examine the past, present, and
persecution of the powerless by the powerful in Thailand. His
criticism often makes those in power uncomfortable, and there has been
an attempt to use Article 112 to curtail his speech. In April 2011, a
police investigation began against him in relation to a complaint
likely made in relation to comments he made in article about a
Princess Chulabhorn’s (one of the daughters of the current Thai king)
appearance on a talk show. This case is still ongoing, even though
Article 112 does not apply to Princess Chulabhorn, and so there is no
legal restriction of comments made about her. In early February 2014,
the deputy spokesman of the Royal Thai Army commented that the Army
plans to file additional complaints of violations of Article 112
against Professor Somsak in relation to comments he posted on the
social media website Facebook.

The ALRC is particularly concerned that the violent attack on
Professor Somsak has come so close following the comments of the
deputy spokesman of the Royal Thai Army regarding further proceedings
under Article 112 against him. While the identities and motivations of
the attackers remain unknown pending police investigation, the
temporal link to the formal and legal action taken against him by the
Royal Thai Army is striking. In addition, given the severe
polarization in Thai society which began when the protracted protests
against the elected government began in November 2013, this extralegal
attack on Professor Somsak is a further indication of the ongoing
breakdown of the rule of law in Thailand.

The ALRC would like to remind the Thai government that they are a
state party to the International Covenant on Civil and Political
Rights (ICCPR) and are bound to uphold the human rights principles
named therein. In particular, the ALRC would like to call on the Thai
state to uphold Article 19 of the ICCPR, in particular, paragraph 1,
which guarantees that, “Everyone shall have the right to hold opinions
without interference,” and paragraph 2, which guarantees that,
“Everyone shall have the right to freedom of expression; this right
shall include freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing
or in print, in the form of art, or through any other media of his
choice.” It is imperative that the Thai state’s protection of the
rights guaranteed in Article 19 and the remainder of the ICCPR be
active, rather than passive. Upholding the ICCPR necessarily entails
protecting those whose views are dissident and ensuring that they can
safely exercise their political freedom. Failure to do so will signal
to vigilante actors that attacking those who hold different views are
acceptable within the Thai polity.

The ALRC would also like to remind the Government of Thailand that
under Article 19 of the ICCPR, restrictions on the right to freedom of
expression are only permissible under two circumstances: “for respect
of the rights or reputations of others” and “for the protection of
national security or of public order (ordre public), or of public
health or morals.” Although Article 112 is classified as a crime
against national security within the Criminal Code of Thailand, and
this, along with the need to protect the monarchy, is frequently cited
by the Government of Thailand when faced with the criticism that the
measure is in tension with the ICCPR, a precise explanation of the
logic for categorizing the measure as such has not been provided to
date. Until this explanation is provided, the constriction of freedom
of expression is arbitrary and contributes to a climate hostile to
human rights.

The ALRC is gravely concerned about the ongoing legal and extralegal
threats to freedom of expression in Thailand, and their effects on
human rights, justice, and the rule of law in Thailand. The
intensification of extralegal threats to dissenting citizens’ rights
and lives as indicated by the February 2014 attack on Professor Somsak
Jeamteerasakul represents a new point of crisis in the longstanding
climate of constriction of political freedom in Thailand.

In view of the above, the Asian Legal Resource Center calls on the
UN Human Rights Council to:

Call on the Government of Thailand to ensure that a full
investigation into the attack on Professor Somsak Jeamteerasakul is
carried out and bring the men who shot at his house and car to
justice;

Call on the Government of Thailand to release all those convicted or
facing charges under Article 112 and the 2007 Computer Crimes Act. At
a minimum, those currently being held should immediately be granted
bail while their cases are in the Criminal or Appeal Courts;

Demand that the Government of Thailand revoke Article 112 of the
Criminal Code and the 2007 Computer Crimes Act;

Urge the Government of Thailand to allow and support the full
exercise of freedom of expression and political freedom, consistent
with the terms of the Universal Declaration of Human Rights, to which
it is a signatory, and the International Covenant on Civil and
Political Rights, to which it is a state party, and;

Request the Special Rapporteur on the freedom of opinion and
expression to continue ongoing monitoring and research about the broad
situation of constriction of rights and individual cases in Thailand;
and, the Working Group on Arbitrary Detention to continue to monitor
and report on those cases of persons arbitrarily detained under
Article 112.

About the ALRC: The Asian Legal Resource Centre is an
independent regional non-governmental organisation holding general
consultative status with the Economic and Social Council of the United
Nations. It is the sister organisation of the Asian Human Rights
Commission. The Hong Kong-based group seeks to strengthen and
encourage positive action on legal and human rights issues at the
local and national levels throughout Asia.// /

Read this online from AHRC
http://www.humanrights.asia/news/alrc-news/human-rights-council/hrc25/ALRC-CWS-25-07-2014