Taking steps to protect human rights

General News : Monday December 10, 2007

ANALYSIS / GLOBAL TREATIES

Taking steps to protect human rights

Job of safeguarding individual liberties and ensuring tolerance and equality begins close to home

By VITIT MUNTARBHORN

Today is international Human Rights Day. Auspiciously it coincides with Thailand's Constitution Day, and it acts as a reminder of the importance of human rights to all our lives, while not forgetting the many impediments facing its implementation worldwide. Darfur, Afghanistan and Iraq are but some of the continuing flashpoints on this front.

Closer to home, for the past year Thailand has been through much soul-searching, especially with the most recent coup d'etat and its reverberations in the aftermath.

Should a democratically elected government be displaced by force, even if the administration is seen as corrupt? What if that administration had committed many human rights violations? Is a subsequent civilian administration installed by a coup the appropriate, legitimate transition to a democratic process? What if that process is ambivalent?

While there are no easy answers to these questions, from a human rights angle, it can be underlined that peaceful means of change are preferred, and that the advocacy of human rights must go hand in hand with democracy, peace and sustainable development.

The situation at home remains critical, especially with the ongoing violence in southern Thailand and the slow march toward participatory civilian solutions rather than militaristic ones.

With the national elections looming this month, the power struggle between the old and new elite is likely to be poignant, and the question remains to what extent the country can move ahead without backtracking and resorting to uniformed arbiters to shape the national destiny.

Yet, even in such a setting, while many negative situations remain, some constructive developments may be identified.

- First, while the pros and cons of the new constitution are open to debate, there are various features which are progressive, at least in principle. For instance, it broadens the guarantees for human rights than was seen under the previous constitution, such as in regard to community rights and access to the courts.

However, it cannot be denied that the constitution was not drafted in a participatory manner, and a disquieting undercurrent is to ensure a weak executive branch of government, while perpetuating the role of the military as a key determinant, even in an unwritten form.

- Second, the interim National Legislative Assembly has introduced some innovative legislation. On the positive front, it has reformed the Civil Code to be more gender sensitive. Under a recent amendment, the grounds for divorce between men and women are now equal. In the past, while the law provided for the male spouse to claim adultery committed by the female spouse as a basis for divorce, this was not so where the female spouse wished to claim adultery on the part of the male spouse. She had to prove not only adultery but also that the male spouse was treating another woman like a wife. This discriminatory provision has now been discarded.

The Criminal Code has also been reformed to be more gender sensitive. Previously, the crime of rape was limited to the case where it was committed against a woman, and it did not include the situation where the husband acted in such manner against his wife. Under the new law, rape covers violent sexual acts against men and women, including in marital relations. However, the courts have discretion not to impose criminal sanctions on the offending spouse and instead to impose various conditions for improved behaviour.

Thailand has a new law against domestic violence. Violence in families is no longer seen as a private matter and opens the door to public action from the state to protect the victim. Those who witness such violence are obliged to report it to the authorities. Medical and psychological interventions aimed at rehabilitation may also be imposed on the offender. Multi-disciplinary teams, including social workers and psychologists, have a key role in the process.

The rights of those with disabilities were boosted by a recent new law on the promotion of their quality of life. It provides for remedies in the case of discrimination. Employers are urged to employ those with disabilities, and tax deductions are permitted as an incentive. Those who do not wish to do so are obliged to contribute to a fund to help those with disabilities. A new national unit to help the group is also to be set up, with social benefits and social protection afforded to them.

In terms of Thailand's engagement with the international human rights system during the year, the country became a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This is the sixth major human rights treaty that the country has signed, the others being on civil and political rights, economic, social and cultural rights, women's rights, child rights and action against racial discrimination.

Thailand has also signed the treaty on the rights of those with disabilities, although it is not yet a full party and document must still go to parliament for ratification.

Those positive steps should not obscure the fact that several legislative developments and current practices are regressive, and the good faith in rushing to pass various laws has been questionable.

Most infamously, there is a pending draft internal security law which has been heavily criticised for undermining human rights by giving too much power to the national security authorities and for entrenching a state of emergency in the country.

Ambivalence also remains in regard to the recent enactment of the community forest law. While the role of communities in protecting natural resources is welcome, the law has been criticised for its narrow definition of a community which would be entitled to act for such purpose. It limits eligibility to those who have lived in the forest for at least 10 years before the passage of this law, thus marginalising about 20,000 communities in the country.

At the regional level, the Association of Southeast Asian Nations recently adopted its charter as a kind of constitution for the alliance. It provides for the setting up of a human rights body at the regional level. Yet the real test will be when the terms of reference for such a body are finalised, subject to approval by the foreign ministers of the regional group. The body must be "value added" and promote and protect human rights beyond what the national settings are able to offer.

The very least that it should be able to do is make recommendations on needed improvements. Preferably, it should have investigatory powers and be open to receiving communications from individuals and groups seeking remedies.

At the international level, the past year has witnessed key developments in regard to standard setting and review of the implementation of human rights. The United Nations adopted the Declaration on the Rights of Indigenous Peoples. While it is not a treaty, the declaration is a potent instrument for guaranteeing the rights of the world's "first nations" and overcoming the many transgressions committed against them. It recognises their right to self-determination, advocating that they have "the right to autonomy or self-government in matters relating to their internal and local affairs as ways and means for financing their autonomous functions".

The declaration adds that nothing therein may be interpreted as authorising the dismemberment of the territorial integrity or political unity of sovereign and independent states, thus calming fears of separatism.

Most interestingly, it provides a spiritual dimension to human rights by calling for respect for indigenous peoples' spirituality and traditions, in accordance with international standards, and urges states to offer just and fair redress to mitigate adverse environmental, economic, social, cultural or spiritual impact resulting from state-related activities.

Another development in the past year has been the emerging work of the new UN Human Rights Council which replaced the UN Human Rights Commission. The council has established a system to review the record of all countries in their implementation of human rights. Known as the "Universal Periodic Review," the council will now undertake a review of all countries based upon the UN charter, the Universal Declaration of Human Rights, human rights instruments to which the country being reviewed is a party, various pledges it has made, as well as other relevant instruments, such as on the law of armed conflicts (international humanitarian law).

While the above developments shed a timely light on various forms of engagement with human rights at different levels of the globalisation process, they are ultimately shaped by the need for enforcement through responsive laws, policies, programmes/practices, mechanisms/personnel, resources, education, capacity-building, and broad-based participation. Inevitably, the crunch remains the effective implementation and protection of human rights at the national and local levels.

Vitit Muntarbhorn is a professor in the Faculty of Law, Chulalongkorn University. He is a former UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography. He is currently UN Special Rapporteur on the Situation of Human Rights in the Democratic People's Republic of Korea.

By : Bangkok Post