15 October 2020
Revoke the declaration of serious emergency situation, stop thwarting people’s rights and freedoms and democracy
Cross Cultural Foundation (CrCF)
In pursuance to General Prayut Chan-ocha’s declaration of a serious emergency situation in Bangkok by invoking the Emergency Decree on Government Administration in States of Emergency 2005 (the Emergency Decree) effective since 4.00am on 15 October 2020 claiming in the declaration that;
“a number of groups have solicited, incited, and acted to organize a public assembly in violation of the Public Assembly Act in Bangkok. And through various means and channels, efforts have been made to create chaos, disruption and public disorder including an act that infringes upon the royal motorcade. It is reasonable to believe such violent acts may affect national security, safety in personal life and public property and do not constitute a peaceful assembly upheld by the Constitution of the Kingdom of Thailand. It also bears a direct impact on the achievement of the measures to contain the Covid-19 pandemic which shall directly affect the country’s fragile economic stability. It therefore strongly justifies an emergency measure to address the situation and to bring it to rest effectively and timely to ensure the enforcement of the law and the maintenance of public order and interest”
The Prime Minister has also issued restriction against public assembly or unlawful assembly in any place of five persons and upward and the prohibition of the dissemination of news which may affect national security.
In addition, the Prime Minister has also appointed military, police and civilian officials as competent officials and authorized the transportation troops for various operations including the apprehension of demonstrators. Competent officials shall have the power to arrest or hold in custody an individual up to 30 days without charges prior to the processing following the Criminal Procedure Code.
Such draconian power has been bestowed on the administrative power without checks and balances regarding the emergency power, entirely different from a normal situation during which such exercise of power shall be subject to checks and balances to prevent arbitrary arrests and detention. It has led to massive arrests of protest leaders and demonstrators, the search of vehicles and places as well as the deployment of troops inside the Parliament.
CrCF is opposed to the exercise of power by the PM as aforementioned since it constitutes an exercise of power beyond what is provided for in basic laws, the rule of law and human rights principles. It also aims at stifling public assembly by the “คณะราษฎร์2563 or Kanarajsadon 2020” which has been conducting public assemblies to vent their political demand legitimately to sere public interest and it was the exercise of their fundamental freedoms guaranteed by the Constitution.
Under international standards, the declaration of state of emergency has to be carried out in compliance with international human rights obligations. Thailand is obliged to act in accordance to the International Covenant on Civil and Political Rights (ICCPR), of which its Article 4 (1) provides that a state of emergency must constitute a “public emergency threatening the life of the nation”.
In CrCF’s view, the Khana Ratsadon 2020’s public assembly on that day did not constitute a threat to the life of the nation which may affect the public as a whole whereby the state is deprived of other alternatives to respond to such threat. What really happened did not cause the impact that may endanger the existence of the nation. That the PM exercises his power to declare the state of serious emergency is therefore a blatant breach to the state’s commitment toward an international law.
In CrCF’s view, the state should refrain from exercising its power pursuant to the Emergency Decree against political demonstrators who have exercised their rights peacefully for public interest and should refrain from issuing restriction of press freedom. Even during a public emergency, it is still incumbent on the state to respect, protect and promote human rights.
The implementation of any measures issued by virtue of the Emergency Decree has to be carried out within the bound of legality, non-discrimination and in compliance with the principles of necessity and proportionality.
CrCF is gravely concerned with the previous and impending exercise of power by competent officials invoking the Emergency Decree, particularly the arrest and detention of public assembly participants as well as the summoning of persons to report themselves. We have found the disclosure of names of the persons being deprived of liberty, where they are held in custody, their access to medical examination carried out by independent medical doctors, their access to their families or persons of trust, and their access to legal counsel, shall be a major safeguard to prevent the violation of their right to life and body.
Moreover, any treatment of a child and a minor has to be done in accordance with the best interest of the child. A legal action against a child and a minor shall be executed not less than the standards provided in the Juvenile Criminal Procedure Code and in compliance with the child protection law (the Child Protection Act 2003).
CrCF has the following demands;
1. Revoke the declaration of the state of emergency immediately. The cabinet should invoke Section 11(1) coupled with Section 5/1 of the Emergency Decree to disapprove the exercise of the PM’s power to declare the serious emergency situation in order to prevent the invoking of power pursuant to the Emergency Decree in response to the political demonstrators who have exercised their power peacefully to serve public interest and to refrain from restricting press freedom regarding the reporting of facts to the society, to release all persons being held in custody invoking the Emergency Decree and to bring back security forces to the barracks.
2. There should be the disclosure of names of the persons being deprived of liberty, where they are held in custody, their access to medical examination carried out by independent medical doctors, their access to their families or persons of trust, and their access to legal counsel in private.
3. Disclose detail of action plans and measures to execute the state of emergency declaration including any rules, notifications, instructions and criteria when using discretion concerning the exercise of power per the Emergency Decree as well as names of in charge authorities, chief officers of various operation units, in order that the affected people may seek a recourse to justice and demand compensation and rehabilitation when inflicted with gross human rights violation. It can also prevent the human rights perpetrators from enjoying impunity.
4. Children and youth should be treated based on the best interest of the child principle. A legal action against a child and a minor shall be executed not less than the standards provided in the Juvenile Criminal Procedure Code and in compliance with the child protection law (the Child Protection Act 2003).
5. The Court should strictly exercise a review of the exercise of power pursuant to the Emergency Decree to prevent the arbitrary use of power and to protect people’s rights and freedoms in accordance with the law, the rule of law and international obligations, indecently and without political interference.
CrCF fervently hopes that the enforcement of the law during the declared state of emergency shall be made with an aim to respect, protect and promote human rights and in accordance with the separation of the administrative power, the legislative power and the judiciary power based on mutual checks and balances to prevent the arbitrary use of power.
In this regard, CrCF calls for the review of all security laws, particularly the Martial Law Act 1914 and the Internal Security Act 2008 to ensure their compliance with international human rights laws, the rule of law, and values of a free and democratic society which strives to confine the exercise of state power within the bound of the law.
For information, please contact:
Pornpen Khongkachonkiet, phone 065-5979-3836