Prime Minister Thaksin Shinawatra
Thanon Pissanulok Dusit,
Via facsimile: +66-2282-8631
We are writing to address matter of urgent concern regarding the enactment of the Emergency Decree on Public Administration in Emergency Situation, B.E. 2548 and its derogative effects to human rights, freedoms, due process of law and democratic principles in Thailand.
The Emergency Decree does not proclaim a state of emergency in itself, but authorizes the Prime Minister to declare a state of emergency in parts or in whole of the country. By that, it provides the legal basis for a range of special powers limiting and suspending fundamental human rights guaranteed under the Constitution of Thailand and the United Nations Covenant on Civil and Political Rights, including the right to liberty and security, freedom of expression, movement, private life and property.
The Emergency Decree contains provisions that contain almost no limit. The most extreme incident is found in Section 11 (6) of the Emergency Decree, which allows the Prime Minister to, “(…) issue a notification not to perform any act or to perform an act to the extent that this is necessary for maintaining the security of the state, the safety of the country or the safety of the people.”
In a democratic society, such a legislation with far-reaching powers as the Emergency Decree should be formulated carefully through open and transparent parliamentary process. During a press conference on July 15, 2005, after the Emergency Decree was enacted, Deputy Prime Minister Wissanu Krea-Ngam said the government had been preparing to replace the enforcement of martial law in three southern border provinces with a comprehensive legal instrument, combining together special powers under martial law with six other security legislations, to deal with the situation. Debates about this study had been going on for more than six months. The underlying question is why the government chose to exercise the prerogative of the executive branch and did not seek to provide the Parliament an opportunity to discuss and examine the legality of the declaration of states of emergency and the scope of powers assumed in such situations earlier? Equally problematic is the Government’s argument that a new spate of violence in three southern border provinces of Thailand, which has since January 2004 claimed the lives of more than eight hundreds victims, has served to justify the urgent enactment of the Emergency Decree. Even as an emergency legislation outside the usual law-making framework, Article 218 of the Constitution still requires the Emergency Decree to be submitted to Parliament at the earliest possible time through the convocation of an extraordinary session.
The Constitution of Thailand and international human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR), allow in strictly defined circumstances derogations and limitations of fundamental human rights and freedoms in order to respond to an extraordinary security threat to a state and persons under its jurisdiction. It must however be noted that the essence of these requirements is to allow a state to fight a security threat within the rule of law, not as an abrogation of the rule of law.
After being enacted in a cabinet meeting on July 15, 2005, the Emergency Decree entered into force on the next day. On July 19, 2005, you has enforced regulations under the Emergency Decree and declared a “serious emergency” in Yala, Pattani and Narathiwat provinces. This action was taken without a transparent and straightforward clarification to the Thai people and the international community that, as stated in Section 5 of the Emergency Decree, the Parliament did not and will not have the power to question the justification of the declaration of a specific state of emergency and to assess the proportionality of the special powers enacted by the Emergency Decree. In addition, Section 5 of the Emergency Decree provides no limitation as to how many times a state of emergency can be extended. This has created a context in which may risk resulting in arbitrary and disproportionate interferences into fundamental human rights and freedoms. The fact that Section 16 of the Emergency Decree explicitly limits the jurisdiction of the administrative court further questions the possibility to challenge the legality of declaration of a state of emergency and measures undertaken under a state of emergency.
Under your administration, the law enforcement and security forces have increasingly used excessive violence and operated with impunity. There has been no accountability for most of the murder cases during the “war on drugs” in 2003; there has been no accountability for the excessive use of lethal force by the security forces against a group of lightly armed militants in Krue Se Mosque in Pattani province on April 28, 2004 ; there has been no accountability for the brutal dispersal of protesters in Narathiwat province on October 25, 2004 ; and there has been no accountability for the alleged abductions, tortures and murders which took place in relation to counter-insurgency operations in three southern border provinces.
This culture of impunity and the lack of accountability have been reinforced by Section 16 and Section 17 of the Emergency Decree which specifically renders the jurisdiction of administrative, civil, criminal and military courts as well as various disciplinary measures void. Even in an emergency, victims of human rights violations must have an effective way to challenge limitations of their fundamental human rights and freedoms before an independent judicial authority. The government should as well be under the obligation to provide compensation for a wrongful act, and to investigate and prosecute gross human rights violations committed in the course of security operations. This is particularly critical with regard to serious violations of human rights, such as the right to life as well as freedom from torture, cruel and inhuman treatment and enforced and involuntary disappearances.
It must also be stressed that, even in a state of emergency, the authorities have to ensure that extraordinary powers do not lead to arbitrariness. However, the lack of independent and effective control by the Parliament and the judicial authority in the declaration and enforcement of measures under the Emergency Decree combined with the steady erosion of respect for human rights during the past four years have now left Thailand in a dangerously precarious situation. In addition, it must be noted that attempts to fight insurgency in three southern border provinces are not working because of the Government’s failure to meaningfully address the local resentment and frustration over abuses and injustices. The reliance on repressive measures and restriction of fundamental human rights will not at all contribute to lasting solutions to those underlying issues.
One of the most controversial powers under the Emergency Decree is its extended arrest and detention provision. Under Section 11 (1) and Section 12 of the Emergency Decree, the Prime Minister can issue a notification conferring the powers to a “competent officer” to arrest and detain a person, upon an application to leave to the court for seven days initially and up to thirty days in total. Only upon the termination of such period, the competent officer will proceed under the Criminal Procedure Code. This provision raises a number of critical concerns regarding the prohibition of arbitrary detention and access to lawyer assistance, as well as the right to challenge detention before a court (habeas corpus) and safeguards provided under the Constitution of Thailand and international treaties against gross human rights violations, such as torture, cruel and inhuman treatment. Section 12 of the Emergency Decree does not specify clearly what kind of place of custody it will be and under whose authority that the detainees will be placed. There is also no indication regarding safeguards against the mistreatment of children arrested and detained under Section 12 of the Emergency Decree, particularly during the period prior to the application of the Criminal Procedure Code.
In an emergency situation, the authorities can seek information and cooperation from the public so as to resolve the problem in an efficient and timely manner. Powers under Section 11 (2) of the Emergency Decree authorizes a competent officer “to summon any person to report to the competent officials or to give an oral statement or submit any documents or evidence relevant to the emergency situation.” Given the questionable practices of the law enforcement and security forces in three southern border provinces, however, the Emergency Decree may provide another opportunity in which the power to summon any person to obtain information or evidence could be abused as the authorities resort to torture and inhumane treatment. In summoning persons to give information, the authorities often ignore the right to remain silent. This is the basis of concerns regarding possible self-incrimination that the enforcement of Sections 11 (2) could take place in tandem with the possibility to arrest persons for the concealment of information as stated in Section 11 (1). In addition, as the militants continue to single out and take retaliatory actions against any persons who cooperate with the authorities, the summoning powers must not be construed to force persons to become government informants against their will or create a state of suspicion within the community.
Freedom of expression is essential for the functioning of democracy and guaranteeing other fundamental human rights. Article 39 of the Constitution of Thailand and Article 19 of ICCPR, which guarantee the right to freedom of expression, are seriously undermined by Section 9 (3) of the Emergency Decree. The wording this regulation can be subject to arbitrary interpretation and disproportionate interference, which risks to results in curtailing legitimate political and social dissent seen as “misleading understanding of the emergency or affecting the public moral of the people.” The restriction of freedom of expression can be applied both in the area where an emergency situation has been declared or the entire country. The Government has to understand that, even in times of crisis, the right to critical reflection on an emergency situation and the ability of the media from inquiring into wrong-doings by the authorities must be respected to ensure transparency and accountability in the functioning of emergency powers.
The brutal dispersal of protestors in Narathiwat province on October 25, 2004, which to date no one in the authorities has been fully held accountable, serves as the basis of concerns over Section 9 (1) of the Emergency Decree. The suspension of the right to freedom of assembly and association must be carefully assessed as whether any conduct may incite or lead to unrest, and also be with safeguards against the excessive use of violence of the law enforcement and security forces to prohibit or disperse the assembly or gathering of persons.
The right to privacy, in terms of correspondence and residency, is also undermined by the Emergency Decree. This is bordering to the violation of Article 35 and Article 37 of the Constitution of Thailand as well as Article 17 of ICCPR. Section 11 (4) of the Emergency Decree allows the authorities to issue a warrant for the search, removal, withdrawal or demolition of buildings, structures or obstructions as necessary in the exercise of functions in order to promptly terminate a serious situation where a delay may render the situation beyond control. Section 11 (5) of the Emergency Decree expands these powers to issue an order to inspect letters, books, print materials, telegraphic transmissions, telephone conversations or any other means of communication. While these regulations are highly intrusive into the right to privacy, the Emergency Decree provides no effective measure to prevent abuses and arbitrary judgment. Moreover, Section 16 and Section 17 of the Emergency Decree provide no effective remedy to damages through judicial process and channel to challenge the legality of the interference in the administrative court.
Last but not least, the wordings of some provisions of the Emergency Decree may be understood as subversive to the freedom of movement. Regulations under Section
Section 9 (6) of the Emergency Decree allows the authorities “to evacuate people out of a designated area for the safety of such civilians or to prohibit any person from entering a designated area.” It is important that such evacuation must be strictly time-limited and must be genuinely based on the need to protect civilians, not on retaliatory actions against a presumed lack of loyalty.
For the past decades, Thailand had made remarkable gains toward improved respect for human rights and democratic principles. However, it is obvious that the enactment Emergency Decree does not constitute a strictly necessary and proportionate response to the security threat as required under the Constitution of Thailand and international laws. It lacks any meaningful control over both the declaration of a state of emergency and the measures taken within an emergency situation. On the other hand, it clearly facilitates impunity for human rights violations and arbitrariness. With that, the predictable rise of a climate of impunity, and the resulting increase in violence, will further set the stage for violence in three southern border provinces. In order to counter this trend, you must move immediately to repeal the Emergency Decree.
We look forward to your attention to this matter of urgent concerns,
Executive Director, Asia Division
Human Rights Watch
CC: Minister of Interior, Minister of Defense, Minister of Justice, Minister of Foreign Affairs and Secretary-General of National Security Council