Open letter to PM Yingluck: Review emergency decree now
To Her Excellency the Prime Minister, the Speaker of House of Representatives, the President of the Senate, and the General-Secretary of the National Security Council.
Pursuant to the 25th renewal of the enforcement of the Emergency Decree in the three Southern Border Provinces (SBPs) for another three months, approved by the Cabinet, covering the period from September 20 to December 19, this brings the duration of the enforcement of the Emergency Decree to more than six years. It was explained that the new administration has just started to work and needs time to review the situation. Nevertheless, the enforcement of the Emergency Decree to address chronic problems in the SBPs has led to waivers of several normal legal provisions and has breached the spirit of the laws that aim to address problems in a prompt and transparent manner. The law authorises the PM to extend the enforcement of the Emergency Decree after every three months, and the extensions are to be made only for as long as is necessary.
According to the Southern Border Provinces Police Operation Centre, the number of violent incidents from January 2004 to August 2011, has reached 12,167. The highest number was in 2007. The accumulated death toll is 4,771 including 274 police officials, 331 military officials, and 4,166 civilians, as well as 8,512 injuries. This shows, despite enforcement of the Emergency Decree, that violence continues unabated and the law has failed.
In addition, the enforcement of the Emergency Decree to control unrest in the SBPs and to suppress political demonstrations in Bangkok, has led to violations of rights and liberties, and no state agencies have been held liable for such abuses.
The Cross-Cultural Foundation (CCF) and the Foundation of the Muslim Attorney Centre (MAC) urges the government to review extension of the the Emergency Decree for the following reasons:
1. As a state party to the International Covenant on Civil and Political Rights (ICCPR), Thailand needs to report information regarding the emergency situation to other state parties through the secretary-general. This coincides with a recommendation made to the Thai government in 2005 by the National Human Rights Committee, which is a treaty body. Still, the government has failed to inform the UN secretary-general of details regarding enforcement of the Emergency Decree.
2. Since the Emergency Decree has been enforced in the SBPs, special laws have been applicable to extensively compromise rights and freedoms, particularly regarding the arrest and detention of suspects. At present, any person suspected of being complicit in causing an emergency situation can be detained without charge for up to 30 days. Apart from not having to bring the person to court immediately, officials are free to not inform detainees of the reasons for detention and may deny the presence of lawyers during interrogation. Such conditions give rise to abusive detention, torture, or "enforced disappearance". Regulations concerning arrest and detention should be revised based on human rights and the rule of law. Detained persons should be brought in front of a court, relatives and lawyers should be granted access to visit detainees, and medical checkups should be conducted prior to and after detention in order to prevent any human rights abuse during detention.
3. Any order, notification, directive or act committed invoking the Emergency Decree does not fall under the jurisdiction of the Administrative Court. Therefore, no judicial review is possible to verify the lawfulness of the order, notification, directive or act. In certain cases, they do not fall under the jurisdiction of the Court of Justice, either, including the challenge to have a regulation repealed. Such practice is in breach of the principles of judicial review and separation of powers, making verification of the legality of the enforcement of the Emergency Decree or 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 enforce accountability regarding acts under the administrative power during the enforcement of the Emergency Decree. This is particularly important since the exercise of such administrative power may have led to the deprivation of basic rights and liberties, which are 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 without going through the normal legislative process. Though approval from Parliament has been sought since enforcement of the Decree, there has been no any proper process to review the content of the law with participation from civil society, thus making it different from laws promulgated by the legislature. The law allows the PM, with approval from the Cabinet, absolute power in imposing the Emergency Decree and endorsing its renewal.
The government must allow the legislature and judiciary to take part in the review of the necessity of the Emergency Decree and reasons for its renewal, as well as its necessary amendment. Within seven days of the declaration of the Emergency Decree, the bill should be discussed by Parliament to allow legislators, who are representatives of the Thai people, to review any renewal of the emergency decree. Debates in the parliamentary system should be encouraged and civil society and academia should be given the chance to be part of the review.
5. By invoking the Emergency Decree, the armed forces can arrest and detain any person, who could be forced to make a confession or to implicate other persons. Criminal prosecution relies mostly on confessions made at the interrogation level. Statistically there are more than 8,000 cases related to security and the insurgency. Of these, 262 cases have been judged in the lower courts. Of the 262 cases, 119 have been dismissed. A number of people have been arrested and detained under the Emergency Decree, but the courts have dismissed about half of the cases prosecuted, owing to insufficient evidence. This shows how ineffective this 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 obligated.
We urge you as PM and head of the Cabinet to review the future extension of the Emergency Decree in the SBPs, including the provinces of Narathiwat, Pattani (excluding 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 in providing the protection of rights and liberties in compliance with the rule of law and democratic principles.
Pornpen Khongkachonkiet is director of the Cross-Cultural Foundation.
Kitja Ali-issaho is secretary of the Muslim Attorney Centre.
