14-09-2011_CrCF_MAC_ open letter to PM on ED in the Deep-south__Eng_
Cross Cultural Foundation and Foundation of Muslim Attorney Center
14 September 2011
Subject: Review Emergency Decree before the 26th extension of the enforcement in the Southern Border Provinces
Her Excellency the Prime Minister
CC: 1. The Speaker of House of Representatives
2. President of the Senate
3. General Secretary of National Security Council (NSC)
In pursuant to the 25th renewal of the enforcement of Emergency Decree in the three Southern Border Provinces (SBPs) for another three months approved by the cabinet of Royal Thai Government (RTG) covering the period from 20th September – 19th December 2011. This brought the duration of the enforcement of the Emergency Decree to more than six years in total. It was explained that the new administration has just started to work for one month and needs time to review the situation. Nevertheless, the enforcement of the Emergency Decree to address chronic problems in the SPBs has led to waivers of several normal legal provisions and had breached the spirit of the laws that aim to address problems in a prompt and transparent manner. The law authorized PM to extend the enforcement of the Emergency Decree only after every three months and the extensions are supposed to be made for only as long as it is necessary.
According to the Southern Border Provinces Police Operation Center, the number of violent incidences from January 2004 (after the gun robbery incidence) up to 22 August 2011, has reached 12,167, the highest number was in 2007. The number of accumulated death toll is 4,771 including 274 police officials, 331 military officials, and 4,166 civilians as well as 8,512 injuries. It shows how despite the enforcement of the Emergency Decree, violence seems to have been perpetuated and continued unabated and the law seems failed.
In addition, the enforcement of the Emergency Decree to control unrest in the SPBs and to suppress the demonstrations for political expression in Bangkok in 2010, has led to violations of rights and liberties and no state agencies have been held liable for such abuses.
The Cross-Cultural Foundation (CrCF) and the Foundation of Muslim Attorney Centre (MAC) would like to urge the government to review extension of the enforcement of the Emergency Decree in the SPBs with the following reasons:
1. As a state party to the International Covenant on Civil and Political Rights (ICCPR), after the enforcement of the Emergency Decree in the SPBs, Thailand needs to report the information regarding the emergency situation to other state parties through the Secretary General. It coincides with a recommendation made to the Royal Thai Government since 2005 by the National Human Rights Committee which is a treaty body. Still, the RTG has failed to inform the UN Secretary General of detail regarding the enforcement of the Emergency Decree in the SPBs. The RTG is obliged to promptly report reasons for the enforcement of the Emergency Decree and detail of restrictions of rights and liberties in the SPBs to the UN Secretary General.
2. Since the Emergency Decree has been enforced in the SPBs, special laws have been applicable to extensively compromise rights and freedom of people, particularly regarding the arrest and detention of suspects. At present, any person who is suspected of being complicit in causing such an emergency situation can be detained without any charge up to 30 days. Apart from not having to bring the person to the Court immediately, the officials are free to not to inform the detainees of the reasons of the detention and may deny presence of lawyers during interrogation, etc. Such conditions are raising the graph of abusive detention of person, torture, or enforced disappearance. Regulations concerning the arrest and detention of a person should be revised based on respect of human rights principle and the rule of law. The person detained should be brought in front of the Court, relatives and lawyers should be granted access to visit the detainees and medical checkup should be conducted prior to and after the detention in order to prevent any human rights abuse during the detention.
3. Any order, notification, directive or act committed invoking the Emergency Decree do not fall under the jurisdiction of the Administrative Court. Therefore, no judicial review is made possible to verify the lawfulness of the order, notification, directive or the act. And in certain cases, they do not fall under the jurisdiction of the Court of Justice, too, including the challenge to have a regulation repealed. Such a practice is a breach of the principles of judicial review and separation of power making the verification of legality of the enforcement of the Emergency Decree or the extension of the enforcement not subject to the review of the Court. Amendments should be made to the laws to allow the judiciary to review and make it accountable towards the acts of the administrative power during the enforcement of the Emergency Decree and its renewals. This is particularly important since the exercise of such administrative power may have led to the deprivation of basic rights and liberties of people, which is guaranteed by the Constitution. In addition, Section 16 of the Emergency Decree, the waiver of the review by the Administrative Court, should be revoked.
4. The drafting of the Emergency Decree has been made unilaterally by the executive power without going through normal legislative process. Though approval from the Parliament has been sought after the enforcement of the Decree, but there has been no any proper process to review the content of the law with participation from civil society making it different from laws promulgated by the legislature. The law allows the PM for approval from the permission of cabinet to have absolute power in imposing the Emergency Decree and endorsing its renewal.
Therefore, the RTG should allow the legislature and the judiciary to take part in the review of the necessity of the enforcement of the Emergency Decree and reasons for its renewals as well as its necessary amendment. Within the seven days after the declaration of the Emergency Decree, the bill should be putted for discussion by the Parliament to allow the legislators who are representatives of Thai people to review for the renewal of the emergency decree. Debates in the parliamentary system should be encouraged and other sectors including civil society and academic sector should be given the chance to be part of the review in the aftermath of the enforcement of the Emergency Decree.
5. By invoking the Emergency Decree, it allows the arm forces to arrest and detain any person for inquiry and could be forced to make confession or to implicate other persons. Criminal prosecution ensued relies mostly on confessions made at the interrogation level. Statistically, there are more than 8,000 cases related to security and insurgency. Of this, 262 cases have been judged at the Lower Court, from 262 cases 119 have been dismissed is 45.42%. A number of people have been arrested and detained invoking the Emergency Decree. And the Court dismissed about a half of the cases prosecuted owing to insufficient evidence. It shows how ineffective law enforcement is. Also, the detention of a person with intent to change his or her attitude is clearly in breach of the applicable law and not in compliance with the rights and liberties guaranteed by the Constitution, the Criminal Procedure Code, and ICCPR to which Thailand is obliged to follow.
The law that affects people’s rights and liberties such as the Emergency Decree has to be enforced stringently according to the spirit of the law.
Therefore, we would like to urge you as the PM and the cabinet to review the future extension of the continuing of the Emergency Decree in the SPBs including the provinces of Narathiwat, Pattani (exc. Malan District) and Yala in light of the above concerns. This should pave the way for the development of policy and enforcement of the law that will be affective to provide the protection of rights and liberties in compliance with the rule of law and democratic principle.
Please be acknowledged so.
(Ms. Pornpen Khongkachonkiet)
Director, Cross-Cultural Foundation (CrCF)
In behalf of the Chairperson
(Mr. Kitja Ali-issaho)
Secretary, Muslim Attorney Centre (MAC)