In a scant disregard for national
and international outrage, on 15 July 2005, Prime Minister
Thaksin Shinawatra government submitted the “Emergency Decree
on Public Administration in Emergency Situation,
B.E. 2548” to replace the existing martial law
and grant the Prime
Minister absolute power to declare a state of emergency.
After the signing of the Decree by His Majesty the King
of Thailand, it came
into force on 16 July 2005.On
18 July 2005, the government of Thailand declared emergency
in the three southern provinces of Pattani, Yala and Narathiwat. Although,
the government reportedly decided to omit the application
of Section 9 and some parts of Section 11 for the time being, it can invoke such
provisions at its own whims.
On 19-20 July 2005, the United Nations
Human Rights Committee is about to conclude examination
of the Initial Report of Thailand. A number of civil society
organisations have submitted various shadow reports. Asian
Centre for Human Rights (ACHR) submitted its shadow report,
Thailand: Not Smiling on Rights.
With specific request from the members
of the UN Human Rights Committee, the government of Thailand
provided an unofficial translation of the Emergency Decree
during the examination of the periodic report.
Asian Centre for Human Rights has
conducted a cursory scrutiny of the Emergency Decree. It
shows that the Emergency Decree violates the cardinal principles
of administration of justice, due process of law and the
rule of law. Even the Constitutional Court cannot question
the decree. It makes Prime Minister Thaksin Shinawatra an
absolute dictator.
With this Emergency Decree, Thailand
has become a Banana Republic!
Section
5 of the Emergency Decree provides:
“Section 5. In the event of the occurrence of emergency
situation, the Prime Minister deems it appropriate to mobilise
administrative officials or police officers, civil officials
or military officers to jointly prevent, remedy, suppress, contain
the emergency situation, provide rehabilitation or assistance to the people, the Prime Minister
upon the approval of the Council of Ministers is empowered
to declare a state of emergency be it applicable to the
whole Kingdom or in some area or locality as necessary under
the circumstances. In the case where the approval of the
Council of Ministers cannot be obtained in a timely manner,
the Prime Minister may declare the emergency situation and
subsequently shall seek the approval of the Council of Ministers
within three days. If approval of the Council of Ministers
is not sought within the time prescribed, or the Council
of Ministers refuses approva1, such Declaration of a state
of emergency shall cease to be in force.
The Declaration of a state of emergency under
paragraph one above shall be in force for the duration prescribed
by the Prime Minister but shall not exceed three months
from the date of declaration. In the case where it is necessary
to extend such period, the Prime Minister upon the approval
of the Council of Ministers shall have the power to declare
the extension of duration of enforcement provided that each
extension shall not exceed three months.
At the end of emergency situation or upon any
denial of approval by the Council of Ministers or upon the
lapse of the period under paragraph two above, the Prime
Minister shall declare the termination of such Declaration
of state of emergency.”
While the debate on
an emergency law has been continuing for over six months,
one wonders as to why Prime Minister chose to impose it
as a Decree rather than a parliamentary legislation, more
so when Thai Rak Thai party has overwhelming majority in
the parliament. What was the hurry? Or is it another indication
of the authoritarianism of Prime Minister Thaksin Shinawatra
in the name of tackling the situation in Southern Thailand?
The government has
subverted the parliamentary democracy both through its imposition
as a Decree and through exclusion of the parliament from
any future process for the declaration of emergency.
The process of declaration
of the Decree and the Decree are unconstitutional.
Article 218 of the
1997 Constitution of Thailand upholds the supremacy of the
parliament over the declaration of emergency. Paragraph
3 of Article 218 states, “In the next succeeding sitting of the National
Assembly, the Council of Ministers shall submit the Emergency
Decree to the National Assembly for its consideration without
delay. If it is out of session and it would be a delay to
wait for the opening of an ordinary session, the Council
of Ministers must proceed to convoke an extraordinary session
of the National Assembly in order to consider whether to
approve or disapprove the Emergency Decree without delay.
If the House of Representatives disapproves it or approves
it but the Senate disapproves it and the House of Representatives
reaffirms its approval by the votes of not more than one-half
of the total number of the existing members of the House,
the Emergency Decree shall lapse; provided that it shall
not affect any act done during the enforcement of such Emergency
Decree”.
The Council of Ministers
has replaced the parliament!
The fact that it is
not subject to parliamentary approval implies that there
are no checks and balances as to under what circumstances
the emergency can be imposed. The two requirements stipulated by the United
Nations Human Rights Committee in its General Comment No
29 for invoking article 4 of the International Covenant
on Civil and Political Rights - that the situation must
amount to a public emergency, which threatens the life of
the nation, and the State party must have officially proclaimed
a state of emergency – are not met by the Emergency Decree.
The United Nations
Human Rights Committee in its General Comment No. 29 stated,
“measures derogating from the provisions of
the Covenant must be of an exceptional and temporary
(emphasis ours) nature”. There is no bar as to how many times
emergency can be extended. The Emergency Regulation states
that “In the case where it is necessary to extend
such period, the Prime Minister upon the approval of the
Council of Ministers shall have the power to declare the
extension of duration of enforcement provided that each
extension shall not exceed three months”.
Section 7 and 8 of the Emergency Decree provide:
“Section 7. In an area or locality prescribed in a Declaration
of a State of Emergency under section 5, the powers and duties vested individually in a Minister of
a Ministry
or severally in Ministers of more than one Ministry or having
charge and control of the execution of any law or is so
empowered under any law, where it concerns only such powers
that relate to the issuance of a permission, approval, order,
command or aid in the prevention,
remedy, suppression
or ending an emergency situation or providing rehabilitation
or assistance to the people, shal1 be temporarily transferred
as powers and duties of the Prime Minister in order that
instructions and remedies during the situation can be carried
out in an integral, expedient and efficient manner.
The transfer of all or part of powers and duties of Ministers under paragraph one as powers and duties of the Prime
Minister shall be in accordance with a Notification published
by the Council of Ministers.
The Prime Minister shall have the power to
appoint competent officials to perform duties under this
Emergency Decree and to carry out functions under laws which
have been transferred to the powers and duties of the Prime
Minister under paragraph one. A person so appointed as a
competent official shall have the powers under such laws.
In this regard, the Prime Minister may authorize any governmental
agency or competent official under such law to continue
to exercise their previously assigned functions, provided
that the exercise of functions shall be in accordance with
the rules laid down by the Prime Minister.
In a case where the Prime Minister appoints
a civil servant, a police
officer or a military officer holding a position not lower
than Director-General, Police Commander in Chief, Commander
General or the equivalent thereof as a competent official
and designates such person as a Chief Official responsible
in remedying the emergency situation in an area and to have
charge and control over other officials and competent officials,
the exercise of functions by relevant governmental agencies
and officials, including competent officials, shall comply with instructions
of the Chief Official, except for the exercise of military functions, which must be in accordance
with rules and regulations concerning the use of military
force, provided that this must be
consistent with guidelines stipulated by the Chief Official.
In the case of necessity, the Council of Ministers may set
up an ad-hoc
Special Task Force to provisionally exercise functions under
this Emergency Decree until the Declaration of a State of
Emergency has been terminated.
The Prime Minister may authorise a Deputy Prime
Minister or one or more Ministers to exercise powers under
paragraph one, paragraph three or paragraph four on his/her
behalf or may entrust such persons to oversee the exercise
of functions by the relevant governmental agencies, competent
official under paragraph three, Chief Official under paragraph
four and the agency under paragraph five and shall be deemed
to be the superior official of the Chief Official, government
officials and relevant competent officials.
Section 8. For the benefit of coordinating the exercise
of functions in an appropriate manner and befitting the
circumstances and well-being of the people in the area over
which a State of Emergency has been declared, the Prime
Minister or a person assigned by the Prime Minister may
issue an order appointing a group of persons or a person
as an advisor for the exercise of functions of a competent
officia1 or as an assistant to the competent official in
the exercise of functions under this Emergency Decree.
A person appointed under paragraph one shall
enjoy protection to the same extent as in the exercise of
functions by a competent official within the scope of the
appointed functions.”
Sections 7 and 8 of the Emergency Decree must
be read with Sections 10 and 15.
Section 10 provides that
the Prime Minister is empowered to “to
order the use of military force in order to assist administrative
officials or police officers in terminating the serious
situation or controlling the situation so as to promptly
secure order, provided that the performance of functions
by military officers shall have identical powers and duties
to the powers and duties of a competent official under this
Emergency Decree, whereas the scope of the use of such powers
and duties of the military shall be in accordance with the
conditions and time condition prescribed by the Prime Minister
but shall not exceed the powers under martial laws in the
case where martial laws apply”.
Section 15 provides that “A competent
official or a person having identical powers and duties
to a competent official under this Emergency Decree shall
be a competent official under the Penal Code and shall have
the powers and duties of an administrative official or police
officer under the Criminal Procedure Code as prescribed
by the Prime Minister”.
While under section
10 of the Emergency Decree, the military is mandated to
assist administrative officials, under Section 15, they
can operate independently. Section 15 provides that “the
performance of functions by military officers shall have
identical powers and duties to the powers and duties of
a competent official under this Emergency Decree”.
It is
nothing but bringing back military dictatorship through
the backdoor. Most importantly, the role of the provincial
governors
has been terminated.
Section 9 of the Emergency Decree
provides that:
“Section 9. In case of necessity to remedy and promptly
resolve a State of Emergency situation or to prevent the
worsening of such situation, the Prime Minister shall have
the power to issue the following regulations:
(1) to prohibit any person from leaving a dwelling
place during the prescribed period, except with the permission
of a competent official
or being
an exempted person;
(4) to prohibit the use of communications routes
or vehicles or prescribe conditions on the use of communications
routes or vehicles;
(5) to prohibit the use of buildings or entry
into or stay in any place;
(6) to evacuate people out of a designated
area for
the safety of such civilians or to prohibit any person from
entering a designated area”
These provisions
make Thailand an “Open Jail” for the non- ethnic Thais i.e.
religious minorities, indigenous hill tribes, migrant workers
and refugees. Indigenous hill tribes whose citizenship applications
have not been yet processed, the migrant workers and refugees
are required to take permission from different authorities
from district Chief to Provincial government to travel outside
the designated areas on the grounds of “maintaining the
security of the State, public order, public welfare, town
and country planning or welfare of the youth” as provided
under Article 36 of the Constitution of the Kingdom of Thailand.
These provisions
under the Emergency Decree also violate Article 35 of 1997
Constitution of Thailand relating to liberty of dwelling
and Article 36 of the 1997 Constitution of Thailand relating
to traveling and the liberty of making the choice of his
or her residence within the Kingdom of Thailand.
These provisions
also violate Article 12 of the ICCPR relating to the right
to freedom of movement.
Moreover, the power
“to evacuate people out of a designated area for the safety
of such civilians or to prohibit any person from entering
a designated area” is illegal without any checks and balances.
Article 17 of the Protocol Additional to the Geneva Conventions
of 12 August 1949, and Relating to the Protection of Victims
of Non-International Armed Conflicts stipulates the following
conditions against forced relocations:
“Article 17.-Prohibition of forced movement
of civilians.
1. The
displacement of the civilian population shall not be ordered
for reasons related to the conflict unless the security
of the civilians involved or imperative military reasons
so demand. Should such displacements have to be carried
out, all possible measures shall be taken in order that
the civilian population may be received under satisfactory
conditions of shelter, hygiene, health, safety and nutrition.
2. Civilians shall not be compelled to
leave their own territory for reasons connected with the
conflict.”
There
is no such guarantee in the Emergency Decree. Rather Section
11(6) empowers the Prime Minister “to issue a notification [of] the prohibition of any act or any instruction
to perform an act to the extent that is necessary for maintaining
the security of the state, the safety of the country or
the safety of the people”.
Section
9 also provides:
“Section 9. In case of necessity to remedy and promptly
resolve a State of Emergency situation or to prevent the
worsening of such situation, the Prime Minister shall have
the power to issue the following regulations:
(2) to prohibit the assembly or gathering of
persons at any place or any conduct which may incite or
lead to an unrest;
(3) to prohibit the publication, distribution
or dissemination of letters, print materials or any means
of communication containing texts which may instigate fear
amongst the people or is intended to distort information
which causes misunderstanding of the emergency situation
affecting the security of state or public order or public
moral both in the area or locality where a State of Emergency
had been declared or the whole Kingdom;”
While Article 44 of the 1997 Constitution
of Thailand provides the liberty to peaceful assembly, Article 37 provides the liberty of communication by peaceful means.
Article 39 provides the
citizens the liberty to express his or her opinion, make
speeches, write, print, publicise, and make expression by
other means.
Section
9 of the Emergency Decree has taken away these constitutional
rights. The freedom of the press in Thailand is already
under tremendous stress. The media must neither criticise
the government nor raise questions as to how the media companies
owned by Prime Minister’s family member are benefiting from
the government policies. With the Emergency Decree, the
situation has worsened.
This provision of Emergency Decree is also not consistent with
Article 19 of the ICCPR relating to freedom of expression. The United Nations Human Rights Committee in
its General Comment No 10 on Article 19 of the International
Covenant on Civil and Political Rights stated that “when
a State party imposes certain restrictions on the exercise
of freedom of expression, these may not put in jeopardy
the right itself. Paragraph
3 lays down conditions and it is only subject to these conditions
that restrictions may be imposed:
the restrictions must be “provided by law”; they
may only be imposed for one of the purposes set out in subparagraphs
(a) and (b) of paragraph 3; and they must be justified as
being “necessary” for that State party for one of those
purposes.”
Section 11 of the Emergency Decree
provides
Section 11. In the case where
an emergency situation
involves terrorism, use of force, harm to life, body or property, or there are
reasonable grounds to believe that there exists act of violence
which affects the security of state, the safety of life
or property of the state or person, and there is a necessity
to resolve the problem in an efficient and timely manner,
the Prime Minister, upon the approval of the Council of Ministers, shall
have the power to declare that such State of Emergency as a Serious State
of Emergency,
and the provisions of section 5 and section 6 paragraph
two shall apply mutates mutandis.
Upon a Declaration
under paragraph one, in addition to power under section
9 and section 10, the Prime Minister shall also have the
following powers:
(1)
to issue a notification that a competent official shall have the power of arrest and detention of a person suspected
of having a role in causing the emergency situation, or being
an instigator, making the propagation, a supporter of such
act or concealing relevant information relating to the act
which caused the State of Emergency, provided that this
should be done to the extent that is necessary to prevent such person from committing an act or participating in
the commission of any act which may cause a serious situation
or to engender cooperation in the termination of the serious
situation;
(2)
to issue a notification that a competent official
shall have the power to summon any person to report to the competent official or to give an oral statement or
submit any documents or evidence relevant to the emergency
situation;”
In addition,
Section 15 of the Emergency Decree provides,
“Section
15. A competent official or a person having identical powers and duties
to a competent official under this Emergency Decree shall
be a competent official under the Penal Code and shall have
the powers and duties of an administrative official or police
officer under the Criminal Procedure Code as prescribed
by the Prime Minister”.
Under sub-sections (1), (2) and (4) of section 11, the Emergency
Decree give enormous and unhindered powers to the unidentified
“Competent Official”, who is an administrative officer or
police officer, to be the judge and jury in relation to
arrest, detention, issuing of summon to produce documents
or evidence, seizures and issuing of warrants for search,
removal, withdrawal or demolition of building or structures
etc. The administrative officials have replaced
the judiciary. It raises serious questions about the independence
of judiciary.
These
provisions are contrary to provisions of Articles 237 and
238 of the 1997 Constitution of Thailand. Article 237 provides
that in a criminal case, no arrest and detention of a person
may be made except where an order or a warrant of the Court
is obtained, or where such person commits a flagrant offence
or where there is such other necessity for an arrest without
warrant as provided by law. Under Article 238, a search
in a private place shall not be made except where an order
or a warrant of the Court is obtained or there is a reasonable
ground to search without an order or a warrant of the Court
as provided by law.
Under
Section 12 of the Emergency Decree, the Competent Official
has the power to detain an arrested person for 7 days with
maximum of 30 days with the approval of the Court. Such
long period of detention is contrary to the provisions of
Section 87 of the Criminal Procedure Code of Thailand, which
prescribes 3 days detention, that too with the permission
of the court.
Such
excessive powers of arrest and detention under Emergency
Decree also violates article 9 of the ICCPR.
The
Prevention of Terrorism Act of the United Kingdom allowed
detention up to 48 hours. The detention may be extended
upto 5 days with the approval of the Secretary of State.
This extended period of detention for five days was held
illegal by the European Court of Human Rights in Brogan case. If 4 days of additional
detention under PTA of UK constitutes a breach of the Article
5(3) of the European Convention of Human Rights, the detention
upto 30 days even with the approval of the judiciary is
illegal by any yardstick!
Section 11 of the Emergency Decree further provides
(3)
to issue a notification
that a competent official shall have the power to seize or attach arms, goods, consumer products,
chemical products or any other materials in the case where
there are reasonable grounds to suspect that such objects
have been used or will be used to commit or support an act
which causes an emergency situation;
(4)
to issue a notification
that a competent official shall have the power to issue
a warrant for the search, removal, withdrawa1 or demolition
of buildings, structures or obstructions as necessary for
the exercise of functions in order to promptly terminate
a serious situation where
a delay might render the situation beyond control;
There is no judicial oversight
for search and seizure and the use of force, removal, withdrawal
or demolition of buildings, structures or obstructions.
The
mass murder at Krue Se Mosque is a clear example as to how
disproportionate use of force can cause gross human rights
violations. In one of the bloodiest actions by the security
forces, 107 persons, mostly teenagers were killed and 17
others were arrested on 28 April 2004. The killed youth, mostly armed with machetes and only a few
carrying assault rifles, allegedly battled policemen and
soldiers in Pattani, Yala and Songkhla. More than 30 were
killed inside the historic Krue Se Mosque alone on the outskirts
of Pattani in Narathiwat province.The probe panel into the Krue Se mosque headed by Suchinda Yongsunthron, a former constitution judge found that
the security forces did not use peaceful means to
end the standoff and described the killings as an over reaction
by the security forces. The inquiry commission observed
that the circumstances at the mosque were not so overwhelming
that troops had to resort to “excessive force.” The panel
also found that the bodies of the slain militants were not
examined in accordance with judicial procedures.
Section 11(5) of the Emergency Decree also
empowers the President to
“(5) to issue a notification that a competent official shall have the power to issue an
order to inspect letters, books, print materials, telegraphic
transmissions, telephone communications or any other means
of communication as well as to cancel or suspend any contact
or communication in order to prevent or terminate the serious
incident provided that the rules prescribed in the law on
special investigation are complied with mutates mutandis”;
The right
to privacy guaranteed under Article 17 of the ICCPR is taken
away by the Emergency Decree.
Section 11(5) of the Emergency Decree also
violate the right to leave the country. It empowers the
Prime Minister
(7)
“to issue a notification that a competent official
shall have
the power to issue an
order to prohibit any person from leaving the Kingdom where
there are reasonable grounds to believe that the departure
from the Kingdom will affect the security of the state or
the safety of the country;
(8)
to issue a notification that a competent official shall have the power to instruct
an alien to leave the Kingdom in the case where there are
reasonable grounds to believe that such person is a supporter
in causing the emergency situation, provided that the law
on immigration shall apply mutatis mutandis”;
This
violates Article 12.2 of the International Covenant on Civil
and Political Rights which provides that “everyone shall
be free to leave any country, including his own”
Section
11(9) of the Emergency Decree also allows the government
to impose economic embargo. It empowers the President “to
issue a notification that the purchase, sale, use or possession
of any arms, goods, pharmaceutical products, consumer products,
chemical products or any equipment which may be used for causing
unrest or terrorism shall be reported to or be subject to prior
permission of the competent official
or comply with any conditions set by the Prime Minister;”.
The restrictions
on medical products and consumer products violate the provisions
of the International Covenant on Economic, Social and Cultural
Rights and the international humanitarian laws.
Section
12 of the Emergency Decree provides that
“Section 12. In arresting and
detaining suspected persons under section 11(1), the competent
official shall apply for leave of the court of competent
jurisdiction or the Criminal Court. Upon obtaining leave
of the court,
the competent official shall be empowered to arrest and
detain the suspected persons for a period not exceeding
seven days. The suspected persons shall be
detained in a designated place which is not a police station,
detention centre, penal institution or prisons and shall
not be treated as a convict. In case where it is necessary
to continue the detention in order to remedy the emergency
situation, the competent official shall apply for the leave
of the court to extend such detention period by seven days
at a time, provided that the total period shall not exceed thirty
days.
Upon the
expiration of such period, if the detention is still required, the competent official shall proceed
under the Criminal Procedure Code.
In proceeding under paragraph one, the competent
official shall file a report on the arrest and detention
of such suspected persons for submission to the court issuing the order under paragraph one.
A copy of such report shall be deposited at the office of
the competent official so that relatives of the suspected
persons may access such reports for the entire duration
of such detention.
The provisions on
the procedures governing the issue of a warrant under the Criminal Procedure code shall apply mutatis
mutandis to the application for leave of the Court under paragraph
one”.
If the detainees are not detained “in a police station, detention
centre, penal institution or prisons” where shall they be
detained? This is authorizing incommunicado detention without
access to attorney, family members or relatives. There
is no mechanism for supervision of places of detention by
competent national judicial authorities or the International
Committee of the Red Cross.
Section 16 of the
Emergency Decree provides,
“Section 16. A regu1ation, announcement, order or an act
under this Emergency Decree shall be subject to neither
the law on administrative procedures nor the law on the
establishment of Administrative Court nor Administrative
Court Procedure”.
In any
country where there are basic semblance of democracy and
rule of law, no Prime Minister or President can claim itself
above the Constitution.
This provision
makes Thailand a Banana Republic.
Section 17 of the Emergency Decree legalizes impunity.
It provides:
“Section 17. A competent official and a person having
identical powers and duties as a competent official under
this Emergency Decree shall not be subject to civil, criminal
or disciplinary liabilities arising from the performance
of functions for the termination or prevention of an illegal
act, provided that such act is performed in good faith, is non-discriminatory, and is not unreasonable
in the circumstances
exceeding the extent of necessity, but does not preclude
the right of a victim to seek-compensation from a government
agency under the law on liability for wrongful act of officials”.
By
giving complete impunity to the competent officials or appointees
of the Prime Minister, the Emergency Decree has legalised
the climate of impunity already prevailing in Thailand.
It deprives the people of remedies to which they may be
entitled in accordance with article 2, paragraph 3, of the
ICCPR.
The
United Nations Special Rapporteur on Extrajudicial, Summary
and Arbitrary Executions lucidly summarised the impunity
and extrajuducial executions in her report to the 57th
session of the United Nations Commission on Human Rights:
“Impunity for human rights offenders seriously
undermines the rule of law, and also widens the gap between
those close to the power structures and others who are vulnerable
to human rights abuses. In this way, human rights violations are perpetuated
or sometimes even encouraged, as perpetrators feel that
they are free to act in a climate of impunity.
….., extrajudicial killings and acts of murder may
sometimes also go unpunished because of the sex, religious
belief, or ethnicity of the victim. Long-standing discrimination
and prejudice against such groups are often used as justification
of these crimes. The increasing difficulties in securing
justice alienate the people from the State and may drive
them to take the law into their own hands, resulting in
a further erosion of the justice system and a vicious circle
of violence and retaliation.
If unaddressed, such situations may easily degenerate
into a state of anarchy and social disintegration.
Human rights protection and respect for the rule
of law are central to lasting peace and stability.
It is, therefore, crucial that conflict prevention
strategies and post‑conflict peace‑building
efforts include effective measures to end the culture of
impunity and protect the rule of law.”
Terrorism must be fought within the
ambit of the rule of law and not through “State terrorism”
such as the Emergency Decree.
The
United Nations Human Rights Committee must censure the government
of Thailand and urge the government of Thailand to inform
other State parties about the derogation from the International
Covenant on Civil and Political Rights (ICCPR), recommend
to ensure that any emergency regulation comply with ICCPR.
International
community must also intervene to stop complete erosion of
due process of law, rule of law and violations of cardinal
principles of administration of justice. The Emergency
Decree on Public Administration in Emergency Situation, B.E. 2548 must be withdrawn.
