Public Statement Opposition to the Merger of the National Human Rights Commission and the Office of the Ombudsman Thailand
For immediate release on 29 January 2015 The Constitution Drafting Committee (CDC) is reviewing Sections in Chapter II including Part 5 (Monitoring the Exercise of the Power of State) regarding the Constitutional Organs including Section 4 (The National Human Rights Commission) and Section 5 (The Office of the Ombudsman Thailand) and it has been proposed on 28 January 2015 for the two constitutional organs to merge. The meeting was inclined to believe that this proposal should be put on hold pending more studies of the pros and cons regarding the merger of the two agencies and the information shall be reviewed in the next meetings of the CDC. It was proposed that a taskforce be set up to follow up on the possible combination of the two agencies. The Union for Civil Liberties (UCL), the Human Rights Lawyers Association (HRLA), and other undersigned organizations oppose the merger of the National Human Rights Commission and the Office of the Ombudsman Thailand based on the following reasons.In addition, to that, we also would like to present to the CDC a set of recommendations to strengthen and empower the roles and functioning of both institutions. 1. The background and rationale for the establishment of the National Human Rights Commission and the Office of the Ombudsman Thailand at the international level The National Human Rights Commission (NHRC) is a national institution tasked with promoting and protecting human rights in accordance with the Paris Principles (please see the United Nations, A/RES/48/134) stemming from the result of the International Workshop on National Institutions for the Promotion and Protection of Human Rights in 1991. It was endorsed by the UN Resolution no. 48/134 on 20 December 1993. Its objectives among others are to protect and promote human rights according to the Universal Declaration for Human Rights (UDHR). At present, there are over 106 such national institutions for the protection and promotion of human rights in the world. The Office of the Ombudsman Thailand was originated in Sweden. Founded in 1809, the Ombudsman was supposed to act on behalf of the King to receive and address complaints from people who had been subjected to injustices committed against them by the officials. Even when transformed into a democracy, the idea of Ombudsman still lingered on in Sweden, though the power has then been transferred to the Parliament
as a result of which it was then called “Parliamentary Ombudsman” which functioned in behalf of the Legislative to address problems of the people as a result of unfair treatment they had received from state officials. It is thus another role of an agency to keep the power of state in checks and whose mandate is directly linked with the representatives of the people. In view of the background of the two agencies at the international level, it seems clear that both have been established and tasked with different missions. While, the National Human Rights Commission intends to address human rights violation, the Ombudsman shall endeavor to help keep in checks the exercise of ruling power to prevent any arbitrary exercise of power. 2. Mandates of the National Human Rights Commission and the Office of the Ombudsman Thailand In Thailand, the National Human Rights Commission and the Office of the Ombudsman Thailand have been established by the virtue of the 1997 and 2007 Constitutions of the Kingdom of Thailand. While NHRC’s mandates are essentially to monitor and report an act or an omission to act which has resulted in the violation of human rights as provided for by the statutory laws, the Constitution or international obligations related to human rights enshrined in the treaties to which Thailand is a state party and to recommend measures to provide remedies appropriate to the individuals or the agencies who have acted or omitted to commit the act and to propose human rights policies or laws as well as to promote human rights studies. The Ombudsman’s mandates are essentially to review and inquire any complaints concerning an unlawful act or the misuse of power or a dereliction of duties committed by a state official, a government employee/worker, a state agency or a state enterprise or a local administration organization which has unfairly caused grievances to the complainants or public. The Ombudsman is also supposed to monitor any omission of duties and malfeasance of a constitutional organ and judiciary organ, except for the exercise of judiciary powers by the Courts of Justice. In light of the mandates, though the two agencies are independent regular organizations and are mandated with power to receive complaints, but their essential inquiry duties and purposes are different. While the NHRC purports to monitor and protect the violation of human rights provided for by statutory laws, the Constitution or international obligations regardless if the human rights violation has committed by any individual, the Ombudsman’s essential duty is to monitor compliance with the law as to the exercise of power by state officials, regardless of the act constitutes a violation of human rights or not. Nevertheless, certain complaints can be similarly lodged to both agencies including the violation of human rights committed by state officials. Still, the inquiry procedures of the two agencies are markedly different;
while apart from having to review legal compliance of the act, the NHRC has to establish if the act constitutes a violation of human rights or not, and if so, how. As a result, it will help to develop policy proposals and laws to enable the act in compliance with the legal obligations and to ensure that people are accorded with rights protection beyond the consideration merely based on the legal provisions. The Union for Civil Liberties (UCL), the Human Rights Lawyers Association (HRLA), and other undersigned organizations deem the Constitution Drafting Committee’s claims that the merger of the two agencies is feasible since their mandates are similar reflects a misunderstanding of the spirit and functions/missions of both agencies. We propose that the CDC ensures that the National Human Rights Commission and the Office of the Ombudsman Thailand continues to exist and function as two independent and separate entities in accordance to the 1997 and 2007 Constitutions of the Kingdom of Thailand. This shall guarantees effective protection of people’s rights and liberties based on human rights standards through the mandate of the National Human Rights Commission while the Ombudsman could continue to scrutinize, develop, and strengthen the exercise of the state power mechanisms so as to be fair and to comply with Good Governance principles. With faith in the people’s rights and liberties 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17.
Union for Civil Liberties (UCL) Human Rights Lawyers Association (HRLA) Prorights Foundation Cross Cultural Foundation (CrCF) Human Rights and Development Foundation (HRDF) EnLAWTHAI Foundation Justice for Peace Foundation (JPF) People Empowerment Foundaiton (PEF) NGO Coordinating Committee (NGO-Cord) Foundation for Labour and Employment Promotion (Homenet) Campaign Committee for Human Rights (CCHR) Peace and Human Rights Resource Center Thailand Taskforce for ASEAN Human Rights Mechanisms Thai Labour Museum Network of E-san Women Human Rights Law and Peace Study Center Center for the Protection of Children's Rights Foundation (CPCR)
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Chumchonthai Foundation Eco-Culture and Community Revival and Study Center of Petchabun Mountain E-san Land Reform Network Resource Network of the Lower North Northern Peasant Federation (NPF) Four Region Slum Network E-san Human Rights and Peace Information Center Eco-Culture Study Group Nakhon Ratchasima Empowerment Center E-san Community Institute Community Forest Project Tham Moon Project We Move to Reform WePeace Saiburi River Basin Association Community Rights Promotion Association Social Agenda Taskforce Network of Alternative Agriculture Thai Labour Solidarity Committee Thai Delegation to the ASEAN Intergovernmental Commission on Human Rights Assembly for the Protection of the Environment and Natural Resources Network of indigenous Peoples in Thailand (NIPT) Council of Indigenous Peoples in Thailand Inter Mountain Peoples Education and Culture in Thailand Association (IMPECT) Thai Volunteers Service Foundation Association to Empowerment the Potential of Women with Disabilities (AEPWWDs) Khao Khuha Community Rights Protection Network, Rattaphum District, Songkhla Province Mr. Somchai Hom-laor Ms. Sunee Chairos Dr. Sriprapa Petcharamesree Mr. Chamnan Chanruang Ms. Dararai Raksasiripong Mr. Sanpasit Kumprapan