For immediate release on 19 April 2020
Photo credit: Tuwaedaniya Meringing
Lift the State of Emergency, enforce the 2015 Communicable Diseases Act, and increase public health funds to cope with COVID-19
On 25 March 2020, the Prime Minister of Thailand, by the Cabinet’s approval, has imposed the State of Emergency across Thailand under Section 5 of the 2005 Emergency Decree on Government Administration in States of Emergency 2005 (‘The Emergency Decree’). Considered a “special law,” the Emergency Decree was invoked to supposedly prevent the spread of the COVID-19 pandemic which had begun since late 2019. The government stated that it might extend the imposition of the State of Emergency after its expiry on 30 April 2020 should it be necessary to retain such measures.
The Cross-Cultural Foundation (CrCF) deems the imposition of the State of Emergency delegates the administration and the cabinet’s vast administrative power. They are now vested with the power to impose draconian measures to restrict people’s rights and freedoms including freedom of movement, the entry and exit of the Kingdom, freedom of association, and the opportunity to earn one’s living. Therefore, such powers must be exercised strictly during the emergency “which threatens the life of the nation” as prescribed in Article 4/1 of the International Covenant on Civil and Political Rights (ICCPR) to which Thailand is State Party that;
“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present 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.”
The Cross-Cultural Foundation (CrCF), therefore, urges the government to not extend the imposition of the State of Emergency after its expiry on 30 April 2020 based on the following information and reasons:
- The restriction of people’s rights and freedoms under the Emergency Decree has resulted in a severe economic downturn. Certain businesses have been suspended while people are prevented to leave their homes. It has led to a massive layoff and millions have no ways to provide remedies for themselves, particularly, the poor, the marginal groups, the homeless and migrant workers. Meanwhile, the government has come up with no efficient and adequate measures to mitigate such economic distress. If the agonies of people who live with poverty are led to continue, it could bring about a political, social, and economic crisis at the national level.
- The COVID-19 outbreak has been relieved to an extent and now appears to be stabilized and contained. The government can now resort to the Communicable Diseases Act 2015 and can now campaign to engender more understanding and encourage the public to take care of themselves and others better. The state must urgently increase funding for public health authorities, introduce measures and provide sufficient supplies of personal protective equipment including surgical masks and universal access to health services among the people. This can be done without having to resort to the measures according to the Emergency Decree.
- The Emergency Decree shifted checks and balances by the legislative power. The imposition of State of Emergency and the entailing measures meted out by the cabinet is beyond the review of the legislative power in contrast to the laws in other democracies. According to the Emergency Decree, after imposing the State of Emergency, the government is neither required to report to nor seek approval from the House of Representatives whose members are representatives of the people, or the Parliament. It has as a result deprived the public of the right to participate in the decision making and the checks and balances regarding the imposition and extension of the State of Emergency, which shall be left to the unilateral decision of the government.
- The Emergency Decree shifted judicial review. The Cross-Cultural Foundation (CrCF) deems an independent and fair judiciary a last and most mechanism in a democracy to ensure the “checks and balances” of the exercise of power by the government and to guarantee people’s rights and freedoms. It is critically important to monitor the exercise of power by the government and competent officials under the Emergency Decree which is a special law and delegates enormous power to the Cabinet. Such a review is necessary to ensure the exercise of power is lawful and not excessive. For example, when the government imposes curfew to prevent people from leaving their homes and several curfew violators have been arrested in merely ten days during 3-13 April 2020 which has led to the prosecution of more than 9,000 court cases. Even though the arrestees have allegedly broken the law and culpable to conviction and punishment, the Court has to bear in mind that when the curfew is urgently imposed nationwide, some people might not be aware of such measures or might not be able to act in its compliance. The Court should, therefore, consider if it is appropriate to have the offenders jailed or detained instead of paying the fine.
This is particularly important considering how crowded the prisons are and the risk of the spread of COVID-19 in the prisons.
The aftermath of the imposition of the State of Emergency reveals flaws and inefficiency of the judicial review. This is partly because the Emergency Decree excludes the power to review the Administrative Court. It deprives the Administrative Court of power to review the lawfulness of any laws and orders issued by the government and any administrative act committed by officials who exercise their power in accordance to the Emergency Decree even though such measures and acts may in various instances lead to unnecessary restriction of the people’s rights and freedoms, not proportionate to the situation. For example, by invoking the Emergency Decree, the government has issued an order to restrict with conditions Thai nationals from reentering the country. Meanwhile, the Thai nationals who are not allowed from returning to their country and want to challenge the order are deprived of the right to complain with the Administrative Court. When they decide to lodge their complaint to the Civil Court, the Court likewise says it has no jurisdiction to review a case related to the orders of the government.
- A lack of checks and balances of the administrative power by either the legislative or the judiciary powers. This could enable the administration and public officials to exercise their power disproportionate to the exigencies of the situation or the emerging situation. In particular, the Emergency Decree exempts public officials from any personal liability as far as the implementation of measures per the Emergency Decree is concerned, even though such implementation may improperly infringe on people’s rights and freedoms. This could enable some public officials to take advantage of the Emergency Decree and abuse their power as attested to by the compulsory collection of DNA samples of the people or in another case, a Village Headman arbitrarily killed his opponent by claiming the victim had violated the curfew ban and obstructed his performance of official duties.
The Cross-Cultural Foundation (CrCF) has also prepared a briefing to help people gain some understanding about the Emergency Decree which is a legal tool used by the government in response to the COVID-19 outbreak. The public must be informed of human rights principles concerning the State of Emergency.
We have given examples and raised the issues as well as proposed recommendations to ensure provisions of the law comply with international standards. It encourages all parties to bear in mind the impacts on people’s rights and freedoms while measures are put in place to respond to the COVID-19 outbreak.
It is the right time for the government and the Parliament to review, revise and overhaul the Emergency Decree to ensure its compliance with the separation of powers and human rights. This could be done by ensuring the inclusion of an effective review of the exercise of power during the State of Emergency by the legislative and the judiciary to prevent the administration from imposing and extending the State of Emergency and from issuing measures and exercising its power arbitrarily without proper review.
In particular, the Emergency Decree 2008 should be amended to give jurisdiction to the Administrative Court to ensure the lawfulness of the measures, orders, and acts by the administration during the State of Emergency. This can help to prevent the misuse of such special measures to create an unnecessary burden to the public and to ensure people have access to justice and proper remedy.
For the briefing on special measures during the State of Emergency and human rights, the case of COVID-19, 2019, in Thailand, please see https://bit.ly/3b9CSbL
For more information, please contact Pornpen Khongkachonkiet, Director of Cross-Cultural Foundation (CrCF)