Thailand Law Journal 2014 Spring Issue 1 Volume 17

3) DOMESTIC LAW

A RIGHTS

Absolute rights will be analysed first as they do not allow for exceptions. Secondly qualified rights will be analysed as these rights do allow for exceptions and the final focus will be on derogable rights, pertinent to Thailand's turbulent political situation. Identical and similar provisions from different treaties will be addressed under the same sub-heading. Certain provisions from the same treaty may also be analysed together, under the same sub-heading, if they are closely related or linked.

The law explored in this section will include the Thai Constitution. Rights under the Thai Constitution are asserted to be enjoyed equally by all Thai people,229 there is no mention of the Constitution's applicability to non-Thai's.

1 Absolute Rights

(a) Right to life

The right to life is an absolute provision in the ICCPR230 and CRC231 as well as a qualified provision in the AHRD.232 Both treaties prohibit the death penalty upon children.233 Thailand amended the Criminal Code in 2003 to assert that anyone under 18 years of age committing an offence to be punished with death, shall have the punishment commuted to imprisonment
of fifty years.234

(b) Freedom from torture

Freedom from torture, cruel, inhuman or degrading treatment is another provision of the ICCPR, CRC and AHRD.235 Thailand acceded to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in October 2007.236 Thailand has made an interpretative declaration regarding the Convention, that it's definition of torture shall be interpreted in conformity with the Thai Criminal Code.237 The UN Committee against Torture has expressed concern over this interpretative declaration because the Criminal Code contains no definition of torture.238 The Child Act contains this definition of torture pertaining to children however:

"any commission or omission of acts which cause the deprivation of freedom of, or mental or physical harm to, a child; sexual abuses committed against a child; inducement of a child to act or behave in a manner which is likely to be mentally or physically harmful to the child, unlawful or immoral, regardless of the child's consent."239

It is forbidden under Thai law to commit or omit any acts resulting in the torture of a child's body or mind.240 The Committee against Torture has also expressed concern at the allegations of widespread use of torture.241 Numerous civil society organisations submitted reports to the Committee against Torture regarding Thailand.242 Territorial Volunteer Defence Corps,
known as Or Sor acting as guards in the refugee camps have been documented to have tortured those living in the camps, however there is no specific mention of children being tortured.243

(c) Recognition as a person before the law

Recognition as a person before the law is guaranteed under the ICCPR and is also a provision of the AHRD.244 The Working Group on Enforced or Involuntary Disappearances have stated that this right is violated when a person is outside the protection of the law, in legal limbo and denied any legal rights.245 Asylum seekers, stateless people and refugees are not recognised under Thai law;246 documents provided by the UNHCR to asylum seekers, refugees and stateless people have no legal validity in Thailand,247 and they are often subject to arrest and refoulement.248 These individuals are in legal limbo and this study will seek to demonstrate the degree to which they are outside the protection of the law and denied legal rights.

(d) Freedom of thought, conscience and religion

Freedom of thought, conscience and religion is a right under the ICCPR, CRC and AHRD.249 No one shall be coerced in a manner to impair them from freely adopting a religion or belief system of their choosing,250 though parents and legal guardians maintain the right to provide direction.251 The right to profess a religion in accordance with an individual's beliefs free from State interference is guaranteed under the Thai Constitution.252

(e) Right to social security

The right to social security, including social insurance is a provision of the ICESCR and CRC.253 The CRC requires this be done in accordance with national law and that benefits should be granted where appropriate,254 thus placing no specific obligations upon Thailand. The CESCR have been more specific and have asserted that asylum seekers, refugees and stateless people should enjoy equal treatment to non-contributory social security schemes, including reasonable access to health care and family support, consistent with international standards.255 Use of the term 'should' means this is an indication of what ought to be,256 not an obligation. Furthermore the term 'reasonable' makes this a qualified right and no longer an absolute right when applied to refugees, asylum-seekers and stateless people. International standards refers to the standards set out in the Refugee Convention,257 meaning that public relief shall be equal to that of nationals.258 Non-contributory public relief in Thailand is ill defined, described in a Government presentation as social assistance for the needy, relief met only in some areas of needs and urgency.259 Furthermore after the 2004 tsunami those lacking legal status were not provided with humanitarian assistance.260

(f) Right to privacy

Right to privacy is a provision of the CRC and ICCPR.261 No child shall be subject to arbitrary or unlawful interference with his or her privacy, family or correspondence.262 Right to privacy is guaranteed under the Thai Constitution.263 Regarding correspondence, the Official Information Act 1997 concerns protection of personal information for both Thai nationals and non-Thai nationals who have a residence in Thailand.264 Non-Thai's can only have residence in Thailand if permitted to stay in Thailand under immigration law,265 which does not allow for irregular migrants.266 This law thus does not apply to the target populations.

(g) Right to health care

Right to health care is a provision in the CRC, obliging states to ensure the highest attainable standard of health care to be enjoyed by all children.267 Under the AHRD every person has the right to enjoy basic and affordable health care services and to have access to medical facilities,268 although States may determine the extent to which they guarantee this right to
non-nationals.269 Thai hospitals are willing to treat individuals from refugee camps, so long as bills are covered.270 Individual cases have been reported of Karen children receiving hospital treatment.271 For the right to be fully realised children who are more vulnerable or in under-served areas should have their needs addressed with national policies and creation of legislation.272 Health care inside refugee camps however is provided by NGO's who have seen a reduction in funding.273 This right is not being fully implemented but the target populations do have access to health care.

(h) Freedom from arbitrary arrest

Freedom from arbitrary arrest and deprivation of liberty is a provision of the CRC, ICCPR and AHRD.274 As asylum seekers, refugees and stateless people are not recognised under Thai law275 they are often arrested and detained.276 The HRC have expressed that arbitrary deprivation of liberty is applicable to immigration control.277 Arbitrary detention is defined in terms of inappropriateness and injustice. Remand in custody is arbitrary if it is not necessary in all circumstances. Detention should not continue beyond the period for which the State can provide appropriate justification.278 The UN have documented that "Refugees from Myanmar, Laos and Cambodia have the option of indefinite detention or being voluntarily deported."279 These detentions have been defined as arbitrary by numerous NGOs.280 The UN has stated that children are generally not detained.281