Thursday, April 21, 2016

THAILAND: Trafficking Bill Needs Rethink

21 April 2016

An Article by the Asian Human Rights Commission

By Phattranit Yaodam

THAILAND: Trafficking Bill Needs Rethink

On 26 January 2016, the Prime Minister, General Prayuth Chan-ocha, wrote a letter to the Chairperson of the National Legislative Assembly (NLA) regarding the draft Act on Trafficking in Persons Procedure Code. He wrote about the rationale and provided a summary of the main issues, and urged the NLA to give priority to the Bill. As a result, on 11March 2016, in its third read, the NLA has reportedly voted to endorse the draft Act.

In its reasoning for urging the NLA to rush through the promulgation of the Bill, the Cabinet has claimed that it wants improve the trafficking procedure code in the criminal justice process, by shifting away from the existing accusatorial procedure, whereby both parties are able to present evidence, and check the same among themselves, based strictly on the evidence taking rule, with the Court confining its role as an adjudicator.

The Cabinet expressed a wish to move to an inquisitorial procedure, whereby the Court would have direct interaction with the defendant, and the prosecutor would assist the Court in establishing the facts. The aim is that the procedure would also provide for the taking of evidence from various sources, which may help accelerate the process in compliance with the safeguard of the rights of trafficking victims, as per the 2008 Anti-Trafficking in Persons Act.

Nevertheless, on 26 March 2016, a rights coalition in Thailand, which consists of the Human Rights and Development Foundation (HRDF) and the Migrant Working Group (MWG), submitted an open letter to Prime Minister and Chairperson of the National Legislative Assembly (NLA); they presented some observations regarding the procedure and the principle encapsulated and envisioned in the Bill.

According to the legislative process of the draft Act on Trafficking in Persons Procedure Code B.E., the rights coalition in Thailand has found that in order to upgrade the trafficking in persons procedure, to make it respond more promptly and serve justice, the government should begin by reviewing problems stemming from the enforcement of the existing Criminal Procedure Code. The government should first establish if the delay could be attributed to the accusatorial procedure itself, or whether it is due to other problems in its enforcement. The promulgation of a new legislation without carefully reviewing the effectiveness of the existing one shall not bring any benefit to law enforcement officers. Rather, it might bring them more problems in enforcement.

In addition, the rights coalition has found that the drafting process was devoid of input from various concerned agencies, particularly the law enforcement agencies. Also, no attempts have been made to publicize the contents of the Bill. It is not feasible now to seek judicial review regarding constitutionality, but given that the content of the Bill may severely infringe upon the rights and liberty of those who have to undergo the new criminal justice proceedings, the agencies proposing the Bill should pay due attention to their concerns instead of just focusing on pushing through a legislation to suppress trafficking offences.

Furthermore, regarding to The 2000 United Nations Convention against Transnational Organized Crime (UNTOC) and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, it only defines a serious offence as one that carries the punishment of imprisonment of four years or more and when the offence involves transnational organized criminal syndicates participating in trafficking offences.

But according to the domestic law of Thailand, a trafficking offence is treated as an offence related to "the public order and moral high ground of society". Therefore, it is included in the same category of offences concerning arson and illegal drugs. Only drug-related offences have their own procedure code, according to the 2007 Narcotics Act, separate from the Criminal Procedure Code. Still, the Narcotic Act relies chiefly on the accusatorial procedure.

Apart from promptness, the rights coalition deems it unnecessary to replace the accusatorial procedure with the inquisitorial procedure in trafficking offences, particularly in light of the practice in similar offences, as aforementioned.

Likewise, the definition of trafficking offences, the scope of application, advance witness examination, the determination of reparation and other damages, the temporary release, the taking of evidence in the Court and the appeal of the verdict at the Appeal and Supreme levels have all been adjusted to make them consistent with the inquisitorial procedure according to the Bill.

On this front, the rights coalition has found that several major provisions in the Bill deprive the defendant of their rights by treating them as an object of proceedings without applying the general rule of the Criminal Procedure Code. For instance, prior conditions have been set forth for the temporary release of an alleged offender or a defendant: the requirement that the defendant has to, by himself, adduce to establish his innocence; the design of the proceeding in which the defendant is assumed a guilty party since the beginning; the waiver of the presumption of innocence rule; the admissibility of the evidence given by the defendant for his own incrimination; and by defining the defendant as a direct party with the Court, all of which have made it more challenging for the defendant to defend themselves.

The rights coalition has stated that the "inquisitorial procedure" in the Bill focuses on punishing the defendant without according due respect to his rights. This makes it vulnerable to the infringement of human rights. A criminal proceeding, in breach of the rule of law and the human rights principles, is not considered proper by civilized nations. It certainly is a deviation from democracy and the rule of law.

Therefore, for the aforementioned reasons, the Thai government, the Cabinet, the NLA, and other concerned agencies should review the principle of the draft Act on Trafficking in Persons Procedure Code B.E., and reconsider the necessity to promulgate the Act. In addition, an attempt should be made to provide for public consultation, allowing concerned agencies from the State, public sector, and academics working to promote and assist the State to protect the rights of trafficking victims, to provide their input regarding the Bill.

This will benefit the future solutions to the problems of trafficking in persons, making it more effective and compliant with both domestic laws and international obligations.

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The Asian Human Rights Commission (AHRC) works towards the radical rethinking and fundamental redesigning of justice institutions in order to protect and promote human rights in Asia. Established in 1984,  the Hong Kong based organisation is a Laureate of the Right Livelihood Award, 2014.

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