Emergency Decree Violates Thai Constitution and Laws

Letter to Thai Prime Minister Thaksin Shinawatra

August 4, 2005  
Prime Minister Thaksin Shinawatra  
Government House  
Thanon Pissanulok, Dusit  
Bangkok 10300  
Dear Prime Minister:  
We are writing regarding the enactment of the Emergency Decree on Public Administration in Emergency Situations that your government put into effect on July 16, 2005.

While we understand that there is a significant security problem in the south and that militants have committed widespread human rights abuses, Human Rights Watch is deeply concerned that this decree violates Thailand’s international legal obligations, Thailand’s Constitution, and Thai laws, and may make matters worse. Specifically, we are concerned about:  

  • the lack of appropriate judicial supervision of arrests and detentions and summons, which heightens the risk of torture or other mistreatment of individuals in custody or while under interrogation;\
  • the lack of appropriate judicial authorization or supervision of searches and seizures;
  • the removal of jurisdiction of the Administrative Court and its procedures for human rights violations committed by state agents;
  • limitations on the ability of victims of human rights violations to use civil, criminal, or administrative remedies to gain redress; 
  • the possibility of blanket state censorship, after years of progress in Thailand towards greater media freedom;  
  • the requirement that suspects not be detained in police stations, detention centers, penal institutions, or prisons, raising the prospect of the use of secret, undisclosed, or inaccessible places of detention where detainees may be mistreated and where monitoring is impossible;
  • unnecessary restrictions on the fundamental rights to freedom of expression, assembly, association, and movement; and
  • the broad provision allowing 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.” This apparently can be applied to any person or institution. This is a broad and shocking assertion of governmental power in a free society, more reminiscent of totalitarian regimes than a democracy.

The 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. This provides the legal basis for a range of special powers limiting and suspending fundamental human rights guaranteed under the Constitution of Thailand and the International Covenant on Civil and Political Rights (ICCPR).  
As a state party to the ICCPR, Thailand must uphold and take measures to ensure the realization of basic rights. Like all state parties, under Article 4 of the ICCPR Thailand may declare a state of emergency if the emergency “threatens the life of the nation.” Once a state of emergency is officially announced, a state may derogate from the covenant “to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”  
According to the United Nations Human Rights Committee, the exigencies of the situation relate to the duration, geographical coverage, and scope of the state of emergency. They must be proportional to the threat and based on a careful justification of the state of emergency and any specific measures taken to implement it.  
However, many provisions of the ICCPR, such as the right to life, freedom from torture or cruel, inhuman or degrading treatment or punishment, and freedom of thought, conscience, and religion may in no circumstances be circumscribed. Arbitrary deprivations of liberty or deviations from the fundamental principles of a fair trial, including the presumption of innocence, are not permitted. Further, the rules of international humanitarian law must always be strictly upheld. We urge you to publicly issue instructions to the army, police, intelligence services, and other state institutions to this effect.  
Worryingly, while the decree states that a state of emergency shall last a maximum of three months, it provides no limitation on how many times it can be extended. This creates the risk of arbitrary and disproportionate limitations on rights and freedoms on an indefinite basis.  
The geographical breadth of this decree is also extraordinary and does not appear to be proportional to the threat. While the decree is ostensibly aimed at addressing violence in Yala, Pattani, and Narathiwat provinces, it applies to the entire country. This is unnecessary and subject to misuse, now and in the future.  
The decree does not contain appropriate judicial and administrative safeguards and erects unnecessarily high barriers against legal action by individuals for human rights abuses by government officials. Both of these provisions are likely to alienate the public while creating a more permissive environment for abuses. This will only deepen the “climate of impunity” described by the United Nations Human Rights Committee in its report of July 28––a term that would not have been used in recent years to describe Thailand. However, under your administration law enforcement officers and security forces have increasingly used excessive violence and operated with impunity. There has been virtually no accountability for the more than 2,000 extrajudicial killings 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 Tak Bai in Narathiwat province on October 25, 2004. There has been no accountability for the many alleged abductions, tortures and murders which have taken place in counter-insurgency operations in the three southern border provinces. As many in Thailand have observed, it is this impunity that has helped fuel the violence in the south over the past 19 months.  
We are particularly concerned with the extraordinary powers that this decree confers on the Prime Minister. With all due respect, no single individual should have all the powers that this decree affords to your office. You now have the power to tell any Thai citizen that what they say or do is forbidden, to censor the media, to authorize warrantless searches and seizures, to forcibly move entire populations, and other extraordinary powers. Given your government’s poor record on civil liberties, we are concerned that the powers you now have through the decree may be misused.  
The way you adopted this decree by bypassing Thailand’s elected representatives in parliament has also shown a disturbing contempt for democratic processes and negated any possibility of the kind of healthy public debate necessary to craft appropriate legislation and policies to address the situation in the south. In a democratic society, legislation with such far-reaching powers should when possible be formulated carefully through an open and transparent process.  
This was possible in this case. During a press conference on July 15, 2005, just after the decree was enacted, Deputy Prime Minister Wissanu Krua-Ngam said the government had been preparing to replace the enforcement of martial law in Yala, Pattani, and Narathiwat provinces with a comprehensive legal instrument, combining together special powers under martial law with six other security-related laws, to deal with the situation. Debates about this and other policy options related to the violence in the south had been going on for more than six months, including by the National Reconciliation Commission you appointed and have now bypassed. We therefore ask why the government chose to implement a decree instead of offering the Parliament an opportunity to discuss and examine its contents, discuss and debate the legality of the decree, and allow for public input? Why did it suddenly become urgent to impose this decree when there had been no significant changes in the situation on the ground?  
We are also concerned that you have thus far refused to submit the decree to the parliament for its consideration in an extraordinary session as required by Article 218 of the Thai Constitution. On July 19, 2005, just before the government announced the enforcement of the decree in Yala, Pattani and Narathiwat provinces, you stated that you would not do so and would only submit it to a regular session when it reconvenes in August. We note that your government has the support of more than 300 MPs in the 500 seat House of Representatives. It also has the support of approximately 140 senators out of a total of 200. It thus appears that the government is ignoring Article 218 because it wants to avoid a public debate by Thailand’s elected and appointed representatives which may lead the public to question both the government’s motive in enacting the decree and its contents. Yet it is worth remembering that under the Thai parliamentary system it is not the government that is elected by the Thai people, it is the Parliament. As the direct representatives of the Thai people, they must have the opportunity to debate this highly controversial decree as soon as possible.  
Since the end of military dictatorship in 1992 Thailand has made great strides on human rights, the rule of law, and pluralism. However, this decree contains the seeds of a future authoritarian regime in Thailand. For this reason, many Thais and friends of Thailand, including Human Rights Watch, are gravely concerned with these developments.  
We therefore urge you to repeal this unnecessary and draconian decree and begin a broad discussion with parliament, civil society and other sectors of Thai society to identify any gaps in Thai law or public policy that need to be addressed to face the very real threats of terrorism and violence in the south. If you decide not to repeal the decree, you must urgently address the problems identified in this letter and by other commentators, including in the July 28 report of the United Nations Human Rights Committee.  
Finally, we note the strong criticism the decree has received from the highly respected Chairman of the National Reconciliation Commission, Anand Panyarachun. According to Mr. Anand, “The authorities have worked inefficiently. They have arrested innocent people instead of the real culprits, leading to mistrust among locals. So, giving them broader power may lead to increased violence and eventually a real crisis… The important question is, when the power is exercised, will it be according to human rights (principles) and other laws? … The government’s ideas are not compatible with reconciliation efforts.” We do not understand why you have implemented this harsh decree instead of giving the widely respected National Reconciliation Commission, which you appointed, time to work. Many other highly respected Thai citizens also believe that this decree will only make matters worse. As when you withdrew your controversial red, yellow, and green zone proposals after a public outcry, we urge you to heed their voices.  
We attach more detailed comments below in the appendix, which we hope your government will study carefully.  
Thank you for your consideration  
Yours Sincerely,  
Brad Adams  
Executive Director, Asia Division  
Human Rights Watch  
cc: Minister of Interior  
Minister of Defense  
Minister of Justice  
Minister of Foreign Affairs  
National Security Council  
National Reconciliation Commission  
National Human Rights Commission  
United Nations Office of High Commissioner for Human Rights  
United Nations Human Rights Committee  
Appendix: Specific Problems with the Emergency Decree  
1. Section 11 (1) and Section 12 of the decree allow the Prime Minister to issue a notification conferring the powers to a “competent officer” to arrest and detain a person for seven days upon application to a court. There is no limit on who such individuals can be, no requirement of adequate legal or other training, and no indication of how such persons will be supervised, and inadequate judicial oversight. This raises serious concerns about the possibility of arbitrary detentions, torture and mistreatment, which have been a serious problem since violence broke out in the south. As the United Nations Human Rights Committee pointed out in its July 28 report, “Any detention without external safeguards beyond 48 hours should be prohibited.” This is because the longer an individual is held without appropriate safeguards, the more likely the individual is to be mistreated.”  
2. Section 12 bizarrely allows for suspects not to be detained in police stations, detention centers, penal institutions, or prisons. This raises the prospect of the use of secret, undisclosed, or inaccessible places of detention where detainees may be mistreated and where monitoring is impossible. This is an unprecedented and extremely dangerous provision that is almost certain to lead to abuses. There is a great risk of “disappearances” in such a volatile situation where there is no judicial oversight or access to counsel or family.  
3. The decree does not provide guarantees of access to counsel or family members, the right to challenge a detention before a court (habeas corpus), or safeguards against torture, or cruel, inhuman, or degrading treatment during the 30-day period of detention allowed by the decree. Only upon the termination of such period will a case proceed under the Criminal Procedure Code. Although the government has stated that a report about an arrest or detention will be submitted to the court, there is no time limit for the submission of this report and in practice we fear that reports will not be submitted in time for the courts to intervene as necessary. We see no reason why it is necessary to depart from provisions of the Criminal Procedure Code, which comports with international standards by limiting detention periods to 48 hours, provides for access to legal assistance, and establishes rights to habeas corpus. It also prohibits torture and mistreatment of detainees. Although the government has offered assurances that additional regulations will be issued to provide access to legal counsel and family, it remains unclear when these regulations will actually be issued and what their contents will be. In this respect we request information as to how many people have been arrested and detained under the decree since July 19. What has happened to those detained? Where are they being held? Do they have access to lawyers or their families? We strongly urge that the normal provisions of the Criminal Procedure Code and the Thai Constitution be adhered to in all detentions and arrests under the decree.  
4. Section 16 removes the ability to challenge the legality of the decree itself, or any orders or acts under the decree, in the Administrative Court. The Administrative Court is established in the Thai Constitution and is a key mechanism for the redress of human rights abuses by state agents, as well as a core element of the checks and balances system established under the Constitution. This is a transparent attempt to shield the government and its officials from anticipated allegations of abuse. It serves no legitimate purpose and should be removed.  
5. Similarly, Section 17 provides unnecessarily expanded immunity from criminal, civil, and disciplinary liability for officials acting under the decree. A complainant now has the burden to prove that the officials in question did not act in “good faith, non-discriminatory, and an unreasonable” manner. This will make it even more difficult for individuals suffering human rights abuses to find redress at a time when virtually all experts have advised your government that a key component of rebuilding confidence in the south is a demonstrable commitment to holding abusive officials accountable. There is already a strong reluctance and often a refusal of courts, particularly in the south, to accept cases related to human rights abuses by soldiers, police officers, or other government agents. This provision is sadly similar to attempts by previous military governments to shield soldiers and officials from the criminal law, such as amnesty legislation enacted by the military government (the National Peace Keeping Council) after the coup in 1991 and after the crackdown on protesters in 1992. This was the product, directly and indirectly, of military rule, which allowed abusers to walk away from their crimes. This type of legislation is not something an elected government should be replicating or reinforcing. Even in a state of 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 is also obliged to provide compensation for illegal acts 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.”  
6. Section 11 (2) of the 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.” The authorities may seek information and cooperation from the public as part of investigations into crimes. However, given the record of law enforcement and security forces in the three southern provinces, we are concerned that this power may be abused as the authorities resort to torture and inhumane treatment to extract information. In summoning persons to give information, the authorities have often ignored the right to remain silent. For this reason it is critical that proper oversight mechanisms are created when implementing Section 11 (2). 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 be used carefully to avoid making individuals targets. Adequate security must be offered to individuals cooperating or perceived to be cooperating with the authorities.  
7. Freedom of expression is essential for the functioning of democracy and guaranteeing other fundamental human rights, yet Section 9 (3) of the decree allows for censorship for vague reasons such as “misleading understanding of the emergency or affecting the public morals of the people.” Such terms can easily be used to limit legitimate political expression and dissent. Restrictions on freedom of expression under this section can also be applied both in the area where an emergency situation has been declared and throughout the entire country, allowing for a national regime of censorship. This would be disproportionate under present circumstances and therefore illegal under the ICCPR. It is important to remember that only through the free flow of information can the government, parliament, the judiciary, civil society and the public come to sound conclusions about the underlying facts and best policies to address political and social problems, especially in emergency situations.  
8. Section 9 (2) of the decree allows for the suspension of the rights to freedom of assembly and association without any safeguards against the excessive use of force to prohibit or disperse the assembly or gathering of persons. This is of particular concern in light of the brutal and deadly dispersal of protestors in Narathiwat province on October 25, 2004, leading to many deaths, for which to date no one has been fully held accountable and which have continued to fuel unrest in the south.  
9. Section 11 (4) of the 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) expands these powers to issue an order to inspect letters, books, print materials, telegraphic transmissions, telephone conversations or any other means of communication. These regulations limit the right to privacy, but the decree provides no effective measures to prevent abuses and arbitrary implementation.  
10. Section 10 (6) of the decree allows for the “evacuation of people out of a designated area for the safety of such civilians…” The evacuation of the civilian population should be considered a last resort. We urge this power to be used carefully, if at all, to ensure it does not lead to abuses. Military and civilian officials should be aware that the forcible transfer of population without grounds permitted by international law from the area in which the persons concerned are lawfully present can be considered to be a crime against humanity.