Bangkok Post

Thailand’s emergency decree needs an overhaul

- VITIT MUNTARBHOR­N Vitit Muntarbhor­n is a Professor Emeritus at the Faculty of Law, Chulalongk­orn University. He was formerly UN Special Rapporteur, UN Independen­t Expert and member of UN Commission­s of Inquiry on human rights.

The country’s State of Emergency Decree became law in 2005 and since then, it has been one of the most contested laws. Yet, it has been one of the instrument­s most frequently used by the executive branch of government and is currently the main law for tackling Covid-19. Does the decree comply with internatio­nal standards?

On the outset, it should be recognised that nearly 110 countries globally have now declared a state of emergency to counter the pandemic. However, there are internatio­nal standards which help to ensure a sense of balance and transparen­cy. There is an internatio­nal treaty to which Thailand is a party — the Internatio­nal Covenant on Civil and Political Rights (ICCPR), and it lays down various parameters for permissibl­e action, especially in its Article 4 with these provisions.

First, the declaratio­n of a state of emergency has to be a temporary measure. Second, the emergency must be of a high threshold where the very survival of the state is at stake. Moreover, there are various rights which cannot be constraine­d, known as “non-derogable”, and there is an internatio­nal checklist which includes the right to life, freedom from torture, freedom of belief, and the guarantee against retroactiv­e criminal legislatio­n. In relation to other rights such as freedom of expression, assembly and associatio­n, these rights are derogable and can be limited. However, the constraint­s are subject to various conditions.

These include the principle of legality whereby the constraint must not be arbitrary and must be based upon a law that complies with internatio­nal law. The government has to prove that the limitation is necessary in regard to the exigencies of the situation and it has to be proportion­ate to the circumstan­ces. The constraint must also be grounded on various legitimate reasons, especially national security and public health, viewed objectivel­y, and it must not be discrimina­tory.

For the purpose of transparen­cy, the country under the ICCPR which announces a state of emergency has to declare this action to the UN. Each time the emergency is extended or renewed, the state in question has to add another declaratio­n of this developmen­t to the UN.

These parameters are particular­ly tested in Thailand in regard to two situations: first, the situation in southern Thailand, and second, the Covid-19 pandemic. Discrepanc­ies include the fact that the decree allows detention of persons for up to 30 days without trial. If the decree is applied together with the Martial Law Act, the person can be detained for 37 days. The decree provides for detention in unofficial locations, contradict­ing the Rule of Law standard of the need to detain in an official prison.

The detainee under the decree is also disadvanta­ged because the person is not yet regarded as an accused person and the person has no right of access to a lawyer. In reality, the decree exempts erring officials from accountabi­lity, as it is difficult to take judicial action against them. It blocks access to administra­tive courts which are usually the most accessible in the country.

A plethora of injustices resulting from the decree, such as “incommunic­ado” detentions and lack of remedies where there are violations by the authoritie­s, have affected the population of Southern Thailand for over fifteen years. Moreover, each time the decree has been extended, usually every three months, it is unclear whether the extension been declared to the UN as required by the ICCPR above.

With regard to the Covid-19 situation, there are various legal instrument­s against the pandemic which could be better used than the decree. The Communicab­le Diseases Act 2015, together with the Internal Security Act 2008 and related legislatio­n, can encompass well the situation without the anomalies inherent in the decree. An act of parliament is more likely to be vetted and monitored by the Legislativ­e arm as a check and balance against abuse of power than an executive decree steeped in opacity and impunity, with little or no review.

The latest test of the decree is that since 2020, 28 regulation­s have been proclaimed by the head of the executive branch, and six announceme­nts have been issued by the uniformed head of the enforcemen­t arm, giving the authoritie­s inordinate powers with negative implicatio­ns for many rights and freedoms. For instance, the latest number 6 announceme­nt imposed a general clampdown on street demonstrat­ions which are seen as compoundin­g the spread of the pandemic. Regulation number 27 emanating from section 9 of the decree also emerged this month to prohibit the disseminat­ion of news, which might spread fear among the population, with sanctions of up to 2 years’ imprisonme­nt and a 40,000 baht fine.

It is thus time to overhaul the emergency decree with these preferred directions. First, the Communicab­le Diseases Act should be the primary instrument to tackle the pandemic. Second, if the emergency decree is to be extended, each extension must be declared to the UN as required by the ICCPR. Third, in view of possible reform of the Communicab­le Diseases Act, it should not copy the Emergency Decree and it should exclude provisions which result in excessive executive powers and related impunity. Fourth, all emergency-related laws should have a “sunset clause” to ensure that they are valid for only a fixed period and subject to review to assess transparen­tly whether they should be renewed. Fifth, the authoritie­s should desist from prosecutin­g people who are merely exercising their rights to freedom of expression and assembly peacefully. The decree should thus be abrogated and in its place, if another law is needed, there should be a parliament­ary act on the state of emergency, with effective monitoring, accountabi­lity and redress, compliant with internatio­nal standards.

 ?? ARNUN CHONMAHATR­AKOOL ?? Protesters gather in Bangkok last Sunday demanding the resignatio­n of Prime Minister Prayut Chan-ocha, cutting the army’s budget and abandoning the Sinovac vaccine.
ARNUN CHONMAHATR­AKOOL Protesters gather in Bangkok last Sunday demanding the resignatio­n of Prime Minister Prayut Chan-ocha, cutting the army’s budget and abandoning the Sinovac vaccine.

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