เปิดเหตุผลคณะกรรมการICC-NHRI คณะกก.ประสานงานสถาบันสิทธิมนุษยชน ของ UN เสนอลดเกรด กสม.ไทย (English and Thai version)

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Extract from
 http://nhri.ohchr.org/EN/AboutUs/ICCAccreditation/Documents/SCA%20OCTOBER%202014%20FINAL%20REPORT%20-%20ENGLISH.pdf
page 32-35
 PDF Thai version at 3.10 Thailand NHRC- Thai version
Word document  Thai version  3.10 Thailand NHRC- Thai version
3.10 Thailand: National Human Rights Commission of Thailand (NHRCT)
Recommendation: The SCA recommends that the NHRCT be downgraded to B status.
In accordance with Article 18.1 of the ICC statute, a recommendation to downgrade does
not take effect for a period of one year. This allows an opportunity for the NHRCT to
provide the documentary evidence necessary to establish its continued conformity with
the Paris Principles. The SCA notes that the NHRCT maintains A status for the one year
period.
The SCA notes:
1. Selection and appointment  กระบวนการคัดเลือกและแต่งตั้ง
The SCA has previously expressed serious concerns about the selection process for
Commissioners. In particular, the SCA noted that:
– There is no requirement to advertise vacancies on the NHRCT;
– The selection committee established by Section 8(1) of the enabling law is
composed of officials from a very small number of public institutions, with no clear
representation, or a requirement for consultation with key stakeholder groups or
civil society;
– There is no provision for broad consultation and / or participation, in the
application, screening and selection process;
– There does not appear to be clear and detailed criteria upon which to assess the
merit of eligible applicants.
In its response, the NHRCT had acknowledged concerns about the lack of participation
in the selection process and indicated that it is advocating that the General Meeting of
the Supreme Court of Justice and the General Meeting of the Arbitrators of the Supreme
Administrative Court select two members from civil society.
The SCA is of the view that this proposal alone is not sufficient to address the SCA’s
concerns and does not establish a transparent and participatory selection process that
promotes merit-based selection.
The SCA encourages the NHRCT to continue to advocate for the formalization of a
comprehensive selection process in relevant laws, regulations or binding administrative
guidelines, and for its subsequent application in practice. Such changes should address
the issues raised above.
The SCA refers to Paris Principle B.1 and to its General Observation 1.8 on ‘Selection
and appointment of the decision-making body of NHRIs’.
2. Functional immunity and independence  เอกสิทธิ์และความเป็นอิสระ
The SCA had previously expressed concerns about whether members of the NHRCT are
immune from prosecution for actions taken in good faith in the course of their official
duties.
The NHRCT provided information to suggest that provisions in a number of laws may
provide immunity from prosecution. These laws included the Public Law, the Penal Code,
Section 59, Paragraph 1, and Section 329; the NHRCT Act, 1999, Section 33, the Civil
Code, Section 420; the Act on Liability for Wrongful Act of Official, B.E. 2539 (1996),
Section 5.
The SCA is concerned that the NHRCT is forced to rely on a variety of provisions in
various laws to ensure its functional immunity and independence.
The SCA has previously expressed concerns that external parties may seek to influence
the independent operation of a NHRI by initiating, or by threatening to initiate legal
proceedings against a member. For this reason, and given the unique role of NHRIs, the
SCA is of the view that NHRI legislation should include a clear and unequivocal provision
to protect members from legal liability for acts undertaken in good faith in their official
capacity. Such a provision promotes:
– security of tenure;
– the NHRIs ability to engage in critical analysis and commentary on human rights
issues free from interference;
– the independence of the senior leadership; and
– public confidence in national human rights institution.
The SCA encourages the NHRCT to advocate for the inclusion of provisions in its
founding legislation that clearly establish functional immunity by protecting members from
legal liability for actions undertaken in good faith in the course of their official duties.
The SCA refers to Paris Principle B.3 and to its General Observation 2.3 on ‘Guarantee
of functional immunity’.
3. Addressing human rights issues in a timely manner  การตอบสนองต่อสถานการณ์สิทธิมนุษยชนให้ทันท่วงที
The SCA has previously expressed concerns that the NHRCT has not been addressing
serious human rights violations in a timely manner.
In 2010, violent demonstrations and civil unrest resulted in a significant number of deaths
and injuries as a result of alleged violations of human rights by In 2010, violent demonstrations and civil unrest resulted in a significant number of deaths
and injuries as a result of alleged violations of human rights by law enforcement
agencies. Despite the serious nature of these violations, the NHRCT took three years to
complete and publish a report into the alleged human rights violations that occurred in
2010.
In late 2013, further demonstrations also resulted in a significant number of deaths and
injuries. The NHRCT provided the SCA with a summary of actions taken in response to
the ongoing unrest. While these show that the NHRCT is operating in extremely difficult
circumstances and has taken some steps to improve its monitoring operations, the SCA
notes that the NHRCT is yet to complete and publish a report into alleged serious human
rights violations that occurred in 2013.
The SCA notes that in the situation of a coup d’état or a state of emergency, NHRIs are
expected to conduct themselves with a heightened level of vigilance and independence,
and to promote and ensure respect for human rights, democratic principles and the
strengthening of the rule of law in all circumstances and without exception. Their actions
may include monitoring, documenting, issuing public statements and releasing regular
and detailed reports on human rights violations through the media in a timely manner.
Furthermore, an NHRI should also undertake rigorous and systematic follow up activities
and advocate for the consideration and implementation of its findings and
recommendations in order to ensure the protection of those whose rights have been
violated. These actions, in particular the release of public reports, serve to combat
impunity for human rights violations.
The SCA refers to Paris Principles A.3 and C.c as well as to its General Observations
1.6. ‘Recommendations by NHRIs’, and 2.6 ‘NHRIs during the situation of a coup d’état
or a state of emergency’.
4. Independence and neutrality ความเป็นอิสระและความเป็นกลาง
The SCA had previously raised concerns that staff members of the NHRCT were
displaying publicly their political affiliations whilst undertaking official functions.
In response, the NHRCT indicated that it had “encouraged” staff to perform their duties
impartially and in a manner consistent with the NHRCT’s Code of Conduct.
The SCA is of the view that displaying one’s personal political affiliation whilst at work
clearly impacts adversely on the real and perceived independence, impartiality and
accessibility of an NHRI, particularly when the country is undergoing a period of political
unrest. At such times, victims of human rights violations may find it difficult to approach
the NHRCT if it is clear that some staff are politically affiliated with the alleged
perpetrators. The SCA therefore stresses that the NHRCT has a responsibility to ‘ensure’
rather than ‘encourage’ its staff to work impartially.
The SCA notes that in the situation of a coup d’état or a state of emergency, it is
expected that a National Human Rights Institution will conduct itself with a heightened
level of vigilance and independence, and in strict accordance with its mandate.
The SCA refers to Paris Principles A.3 and to its General Observation 2.6 ‘NHRIs during
the situation of a coup d’état or a state of emergency’.
5. Legislative process  กระบวนการทางกฎหมายในการร่างรัฐธรรมนูญใหม่
The SCA notes that the NHRCT is actively involved in the current constitutional reforms
and that it intends to re-submit a proposal to amend its enabling law.
The on-going legislative process provides an opportunity for the NHRCT to advocate for
full legislative compliance with the Paris Principles. The SCA encourages the NHRCT to
address all issues raised above, including through amendments to the draft constitution
and its enabling law.
The SCA refers to Paris Principle A.2 and to its General Observation 1.1 on
‘Establishment of NHRIs’.
The NHRCT is encouraged to seek advice and assistance from the OHCHR and the Asia
Pacific Forum of NHRIs.
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