With likely death sentences for perpetrators of the bombing at the Ratchaprasong shrine, Thailand will be forced to face the reality of imposing sentence of death. Given the current standing on sentence of death, what are the options for imposing such sentence?
Like all member countries of the United Nations, Thailand must report to the UN Human Rights Committee in Geneva on its observance of commitments it has freely undertaken in solemnly ratifying International Treaties which codify in detail recognised human rights. The report, referred to as the Universal Peer Review is heard in the great hall of the Palace of Justice in the presence of representatives of other UN nations, who must, in their turn, justify their human rights record, and hear the recommendations of their peers.
In 2011 Thailand first reported to such an assembly. As is usual for countries still maintaining the death penalty, many recommendations refer to the right to life, the basis of all other human rights. Thailand received such recommendations from fifteen countries, eleven in Europe and five in South America. A spectrum of the views expressed is most clearly exemplified in the recommendation of Switzerland, “Ratify the ICCPR-OP2”, and that of Brazil, “Consider abolishing the death penalty”. Both of these brief suggestions are coded reference to one of the most contentious issues for the UN.
The affirmation of the right to life is in the third of thirty two articles in the Universal Declaration of Human Rights, the basis for life and freedom in the modern world. At the time that the Declaration was adopted the world was emerging from a half century of bitter war and division, when only six nations in the world had progressed to abolition of the death penalty, and capital punishment, as was shown in the post war Nuremberg trials, was considered a necessary means of retaliation against heinous crime. Given the starting point for establishing peace and order, the Universal Declaration could not be imposed as obligatory on UN member states. Stronger and more detailed codes were elaborated in the years that followed. One of these codes is the International Covenant on Social and Political Rights (ICCPR). But even then abolition of the death penalty remained a free contractual choice which was elaborated in what is known as the second optional protocol (ICCPR-OP2) referred to in the recommendation to Thailand by Switzerland and several of the other peer recommendations. ICCPR-OP2 if imposes on states ratifying it a formal obligation in international law.
The recommendation of Brazil takes a different tack, “Consider abolishing the death penalty” indicating a stand on the freedom of a country to adhere or not to the basic founding UN document, a choice made explicit in the elaborated right to life as expressed ICCPR. Countries which maintain the death penalty, ignore the intention of the authors of the Declaration and the subsequent Convention, and commonly justify their stand on this freedom of choice. The recommendation of Brazil takes account of this constraint.
When the UPR hearing process is complete, the country under review is given the opportunity to respond to the recommendations made. The response of Thailand to the recommendations is of great interest: the spokesman for the Royal Thai Government rejected recommendations to abolish the death penalty with the words:
Thailand is embarking on a process of studying the possibility of abolishing the death penalty, in consultation with the public and relevant stakeholders. However, pending the completion of this consultation process, Thailand is unable to accept recommendations to review or amend the law in regard to capital punishment, place a moratorium on or abolish the death penalty.
In brief, the recommendation of Brazil to consider abolition is accepted while the recommendation of Switzerland to actually renounce the death penalty is rejected.
In April 2016, Thailand approaches another UPR session. True to its word Thailand has indeed considered abolition as shown by two extensive documents. The first is a study carried out by academics on behalf of the Department for the Defense of Liberties and Freedoms of the Ministry of Justice. This is the Department entrusted with the task of preparing a submission to the Thai Parliament on the issue of the death penalty, it is titled “Project on the Possibility of Abolishing the Death Penalty according to the Second National Human Rights Plan”. It is dated xx and consists of yy pages. The second is a study made by the National Human Rights Commission, which, although theoretically a unit not under government control, in its current realisation faithfully reflects and serves government policy. It is titled “The Death Penalty in Thailand”. Dated xx it is yy pages in length. The promise to Brazil and other countries recommending a stage of consideration is well fulfilled.
Results of consideration on possibility of abolishing the death penaltyThe context of abolition of the death penalty in Thailand was established by locating Thailand among the minority of countries which still retain the death penalty, 58 countries as opposed to the 140 which are abolitionist.
Four major reasons for abolition are identified:
· The death penalty conflicts with the most basic human right, the right to life
· The majority of those condemned to death are the poor, who lack the means to employ effective defense
· The justice system applying the death penalty is defective
· The death penalty is not an effective deterrent to crime
To these may be added the possibility of execution of the innocent.
The study of the Department for the defence of Liberties and Freedoms, takes an academic stand, a study for its own sake, revealing its origin and the uncertainty of its mandate, in brief the lack of political enthusiasm and of a firm mandate from political masters.
By contrast, the study issued by the National Human Rights Commission is strongly oriented to achieving change rather than understanding. It makes an interesting identification of abolition of the death penalty as an expression of democratic power. It bases itself on a concept of penal practice which gives priority to the rehabilitation of condemned prisoners and their return to society. It bluntly accepts that capital punishment is not effective in controlling crime. If its message were accepted, the recommendation of Switzerland in 2011 would be fulfilled.
So there we are, well spiked on the horns of dilemma. We have considered so that a Thai delegation can no longer take refuge in the delaying tactic of pleading pause for reflection. But we are no closer to a decision to accept and ratify ICCPR –OP2. In the next UPR session we hope there will be even increased recommendation for the definitive step of acceptance. But the outcome is likely to be an appeal that Thailand must wait for the approval of popular opinion. As no effort has been made to launch an effective campaign to engage popular opinion, abolition will be further delayed for ever and a day.
To return to the question posed at the beginning of this article, what are the options? The first is to impose a lesser sentence than capital punishment. But for Thai courts which have imposed a sixty year sentence for an obscure charge of lèse majesté, what leeway is there for a heavy sentence for mass killing? And what of a sentence of death, for a country on its declared path to abolition? The only solution is acceptance and ratification of ICCPR-OP2 when Thailand may proceed with exactly the same measures of punishment as the International Criminal Court. So be it!