Covid-19 curbs must heed rights

One of the key developments globally and in Thailand, in regard to measures taken to counter the spread of Covid-19, is the ascendancy of executive power and its implications for human rights. Much of the general public yields to action adopted by the executive branch of government without questioning — accepting the claim of national security and public health based on the exigency of the situation as projected by the authorities. While this is justified at a certain level, there are times when that claim has to be questioned and the presumed benign or benevolent nature of government should be critically appraised.

Matters are further complicated by the rhetoric of “war” used by some governments to validate their actions with a broad margin of discretion which may be, in reality, too subjective and may lead to unnecessary and unreasonable constraints on rights and liberties.

Of the many human rights issues which are emerging, three are of particular poignancy. First, the seepage of securitisation. It is all too evident that the mindset of national security linked with the claim of national emergency in tackling the pandemic is prevalent at present, thus “securitising” responses to the disaster. In Thailand, this is exemplified by use of the Emergency Decree (2005) which confers broad powers on the prime minister to take action in the case of emergencies. This decree is now being applied (and extended) in Thailand to impose a curfew and other constraining measures for the sake of controlling the disease.

Under the decree, a person can be arrested and detained without access to the courts for 30 days. It permits detention outside official prisons, opening the door to an “incommunicado” situation, where the detainee has no access to lawyers. It allows impunity as it is not possible to sue the authorities in the Administrative Court for maladministration under this law.

Interestingly, a Thai national stranded abroad who had been impacted by the authorities’ added travel requirements — such as the need to have a fit-to-fly certificate, which were imposed at very short notice — as a precondition to fly back to Thailand, recently took the case to the Administrative Court. However, he was rejected in accordance with the Emergency Decree. This decree has been heavily criticised by international human rights mechanisms for being unreasonable and for legitimising impunity (especially in relation to the longstanding discrepancies in southern Thailand).

If the decree is used to impose a state of emergency, the authorities are obliged under Thailand’s international obligations to report this measure to the members of the international human rights treaty to which Thailand is a party — the International Covenant on Civil and Political Rights — for the sake of transparency. In the many occasions where the decree has been used here, there has been a failure to report as required under this treaty. Will the authorities abide by the reporting obligation under this treaty, in the era of Covid-19?

There are many other legal tools which can be better used to tackle the pandemic. Most pertinent is the Communicable Diseases Act, which confers broad powers on the Minister of Public Health — and at the provincial level, the various governors — to adopt disease control measures such as lockdowns and quarantine. This is the preferred instrument as it does not suffer from the same loopholes as the Emergency Decree noted above. While some might claim that it should be the prime minister rather than the health minister who should take charge, there is nothing in the 2015 law which prevents cooperation between the minister and the head of the government. In fact, inter-agency and inter-ministerial collaboration is essential and it is also part and parcel of the 2015 law. On a further note, the country has an Internal Security Act, which opens the door to a wide range of actions on grounds of national security, such as limits on the freedom to travel and gather. While not totally human-rights-responsive, this law is still a better tool than the Emergency Decree, because it is open to judicial monitoring, and power is devolved to the cabinet, rather than the prime minister alone.

Second, disproportionate limitations on rights and freedoms. Most rights and freedoms are not absolute and can be constrained on grounds of national security and public health. However, where authorities claim the need to impose such constraints, they need to prove that they have a human-rights-responsive law to support the measures (“legality”); that the constraints are necessary as weighed with the risks (“necessity”); and that those limits are proportionate to the circumstances (“proportionality”). The measures should be non-discriminatory and abide by universal standards, particularly those propounded through the UN.

While many actions taken by the authorities here and elsewhere, such as the universal three T’s (“Test, Trace and Treat”) can be justified, others are more questionable. For instance, the punishment for “fake” news, the use of Criminal Law provisions and a variety of Computer Crimes laws are all too inordinate. They attest to a clampdown on freedom of expression (and the freedom of peaceful assembly), which serves to create an undemocratic regime which is ambivalent about civil and political rights. The non-discrimination principle also requires measures which show empathy to nonnationals, especially migrant workers.

Third, impoverishment and social protection. Tens of millions of people here and elsewhere are out of work and are pauperised by Covid-19. Various measures, such as the 5,000-baht cash handout promised for three months to some 15 million people in Thailand which are in dire economic straits, are welcome. The issue is, however, this: What will come next, when it comes to the resuscitation of people’s wellbeing in a sustained manner?

While part of the response will undoubtedly be covered by the government’s economic rehabilitation programme, it is equally important to look back and review the extent of social protections which were in place before the pandemic took place.

One of Thailand’s key strengths is its Universal Health Care scheme, which has been operational for nearly two decades. The government should keep it as an independent entity and ensure the equitable allocation of resources to support the people. By necessity and as a right, military budgets need to be trimmed and civilian space must be respected and nurtured.