In a letter to Thai Prime Minister Abhisit, Human Rights Watch expresses alarm over the spate of arrests without charge in Thailand and urges him to lift the country’s Emergency Decree.
Letter to Prime Minister Abhisit on Thailand’s Emergency Decree extension
10 July 2010
Dear Prime Minister,
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Human Rights Watch welcomes your decision to lift the Emergency Decree on Public Administration in Emergency Situation (“Emergency Decree”) in Kalasin, Nakhon Prathom, Nakhon Sawan, Nan, and Si Sa Ket provinces. However, we wish to raise our serious concerns regarding the three-month extension of the Emergency Decree by your government on 6 July for Bangkok and 18 other provinces, and reiterate our views about the Emergency Decree’s negative impact on respect for human rights, due process of law, and democratic principles in Thailand.
Specifically, our concerns about the Emergency Decree include: provisions for extended detention without charge; lack of information about those detained without charge; use of unofficial detention facilities to hold these persons; inadequate safeguards against possible abuse while in custody; broad discretion to extend effective immunity from prosecution for most acts committed under the Emergency Decree; and authorisation of widespread censorship.
On 7 April, in response to escalating violence by the antigovernment protesters in the network of the United Front for Democracy against Dictatorship (UDD), the government declared a state of emergency in Bangkok and other parts of the country. Human Rights Watch has since repeatedly voiced concerns that the Emergency Decree provides a range of special powers that limit or wholly suspend various fundamental human rights guaranteed under the International Covenant on Civil and Political Rights (ICCPR), the Constitution of Thailand, and Thai law.
As a state party to the ICCPR, Thailand is obligated to uphold and take measures to ensure the realisation of basic rights. Article 4 of the ICCPR provides that during a time of public emergency that “threatens the life of the nation” and which is officially proclaimed, certain rights may be circumscribed “to the extent strictly required by the exigencies of the situation.” On 10 April, Thailand formally derogated from its ICCPR obligations under the right to freedom of movement (article 12), freedom of expression and the press (article 19), and to peaceful assembly (article 21) in the areas under Emergency Decree. The government did not derogate from the prohibition on arbitrary arrest and detention (article 9), or the right to a fair trial (article 14).
According to the United Nations Human Rights Committee, the expert body that monitors state compliance with the ICCPR, any measures that circumscribe rights must reflect the duration, geographical coverage, and scope of the state of emergency and be proportional to the threat. Further, such key provisions of the ICCPR as the right to life, freedom from torture or cruel, inhuman or degrading treatment or punishment, and freedom of thought, conscience, and religion may in no circumstances be circumscribed. Arbitrary deprivations of liberty or deviations from the fundamental principles of a fair trial, including the presumption of innocence, are also not permitted.
According to the government’s own statements, conditions in Thailand have now largely returned to normal. There are no more protests or violence on the streets of the sort that led to the imposition of the Emergency Decree across 24 provinces in the centre, north and northeast of the country. A Ministry of Foreign Affairs statement on its website dated 29 June described the “Government and Parliament discharging their normal functions,” and life going on as usual in areas under the state of emergency.
The Human Rights Committee, in its General Comment 29, states that governments considering invoking a state of emergency “should carefully consider the justification and why such a measure is necessary and legitimate in the circumstances.” Yet when the Thai government decided to extend the enforcement of the Emergency Decree on 6 July, the only justification given was “to prevent possible violent or unlawful activities.” Human Rights Watch’s analysis is that the government’s stated basis for the continued imposition of a state of emergency does not attempt to demonstrate a situation that “threatens the life of the nation” nor provides grounds for concluding that the measures imposed are “strictly required by the exigencies of the situation.” As leading commentators on the ICCPR have noted, “states of emergency have all too often acted as veils for gross abuses of human rights” (S. Joseph, et al., The ICCPR).
One of the most controversial powers under the Emergency Decree is its extended arrest and detention provisions. We are alarmed that the government is systematically using the Emergency Decree to hold persons without charge for up to 30 days in unofficial places of detention. The Emergency Decree removes the right to challenge a detention before a court (habeas corpus). Moreover, the Emergency Decree fails to provide sufficient and effective oversight to prevent abuse and mistreatment. Unlike Thailand’s Criminal Procedure Code, the Emergency Decree provides no assurance of prompt access to legal counsel and family members, or effective judicial and administrative safeguards against the mistreatment of detainees, as required by international law.
Human Rights Watch notes that the category of people subjected to questioning, arrest, and detention by the government’s Centre for the Resolution of Emergency Situations (CRES) has apparently been expanded beyond leaders and members of the UDD who directly took part in the protests and may have been involved in violence, and now includes those accused of sympathising with or supporting the UDD. Hundreds of politicians, former government officials, businessmen, activists, academics, and community radio operators have been summoned to report to the CRES. Some persons, such as university professor Suthachai Yimprasert, were immediately detained without charge after reporting to the CRES. We have also received disturbing reports that journalists, photographers, and medical volunteers have been ordered to report to the CRES after they publicly stated that they witnessed abuses committed by the security forces.
On 22 April, the CRES ordered the use of military camps in Prachinburi (Jakrapong Camp and Promyothi Camp) and Kanchanaburi (Surasri Camp) provinces to detain protesters. Human Rights Watch has learned that since at least 12 May, the CRES ordered use of additional military camps in Saraburi (Adisorn Camp), Ratchaburi (Panurangsi Camp), and Chantaburi (Panasbodisriuthai Camp) provinces, as well as Border Patrol Police facilities in Prachinburi (Naresuarn Camp) and Pathumthani (1st Region Border Patrol Police Command) provinces, to detain those accused of violating the provisions of the Emergency Decree. Neither military camps nor border patrol facilities are official places of detention under Thai law.
Worryingly, despite reports that hundreds of people have been detained under the Emergency Decree in locations controlled by the security forces, the CRES has so far failed to provide information about the exact number of those detained and their current whereabouts to their families and human rights organisations. On 10 June, the government released welcome information showing that 417 protesters had been arrested and detained. Kiat Sittheeamorn, your special envoy, told Human Rights Watch during a meeting at the Thai Permanent Mission to the United Nations a few days after this information was released, that the list of 417 names comprised all detainees. But since then we have learned that the list only contains information about the protesters, Thai and foreign, who have already been charged and put in formal detention in jails and juvenile detention facilities. Meanwhile information about those who have been detained without charge remains unavailable.
Human Rights Watch requests that the government immediately make public information specifying how many people have been detained under the Emergency Decree since 7 April 2010. We also request that the government provide information regarding those being held, including the names and current status of detainees, their places of detention, and whether they currently have access to lawyers, their families, and medical assistance.
Human Rights Watch has found that the risk of abuse significantly increases when detainees are held incommunicado in unofficial locations and under the control of security personnel who often lack training and experience in civilian law enforcement. Although the Emergency Decree requires that a report on an arrest or detention be submitted to the court, we remain concerned that such reports are not being submitted in a timely manner and with sufficient detail to allow for the courts to intervene if necessary.
This concern is based particularly on our work in Thailand’s southern border provinces, where the Emergency Decree has been enforced since 2005 to quell separatist insurgents. Human Rights Watch’s extensive investigations in the restive region found many cases of serious abuses committed by security personnel against detainees, including custodial deaths, torture, and enforced disappearances.
Human Rights Watch is also concerned about the broad-based immunity provisions in the Emergency Decree. Even during a declared state of emergency, victims of human rights violations should have an effective way to challenge limitations of their human rights and freedoms before an independent judicial authority. However, section 17 of the Emergency Decree provides unnecessarily expanded immunity from criminal, civil, and disciplinary liability for officials acting under the emergency powers. The decree places the burden on the complainant to prove that the officials have not acted in a “good faith, nondiscriminatory, and an unreasonable” manner. This immunity flies in the face of many announcements by the government that a demonstrable commitment to end abuse and impunity by holding all perpetrators accountable, regardless of their positions and affiliations, is critical for building peace and political reconciliation in Thailand.
Human Rights Watch views the right to freedom of expression as essential for the functioning of democracy and guaranteeing other fundamental human rights. However, section 9(3) of the Emergency Decree allows censorship for extremely vague reasons-such as “causing misunderstanding of the emergency or affecting the public morals of the people” – which can easily be used to limit legitimate political expression. We are troubled by the fact that the CRES has applied restrictions on free expression rights both in the area where an emergency situation has been declared and throughout the entire country, allowing for a national regime of censorship. There are reports that more than 1,000 websites, a satellite television station, online television channels, newspapers, magazines, and community radio stations have been closed down. Most of these censored media outlets are known to be closely aligned with the UDD. The CRES has chosen to entirely censor those publications, television and radio stations, and websites rather than restricting the publication or transmission of specific articles or commentaries that incite violence. Human Rights Watch views this sweeping censorship as clearly disproportionate under present circumstances and therefore contrary to Thailand’s commitments under the ICCPR. We note that only through the free flow of information can the government, parliament, judiciary, civil society organisations, and the public come to sound conclusions about the underlying facts and best policies to address political and social problems.
In recent decades, Thailand had made remarkable gains toward improved respect for human rights and democratic principles. However, this record is being placed at risk by the continued use of the Emergency Decree without the demonstrated basis required under international law and through the imposition of restrictions on rights that are not strictly necessary or proportional to the security threat. By opening the door to arbitrary detention, the disregard of due process rights, and other rights violations, the continued operation of the Emergency Decree sets the stage for renewed political tension, social division and polarisation. In order to counter this trend, we urge the government to move immediately to repeal the enforcement of the Emergency Decree, and redouble efforts aimed at effective political reconciliation.
We thank you for your consideration of our views and look forward to your response to these matters of urgent concern.
Acting Executive Director, Asia Division
Human Rights Watch
Director of the Center for the Resolution of Emergency Situations
Minister of Foreign Affairs
Chairperson of the National Human Rights Commission