The Thai authorities must ensure that human rights are fully protected in any emergency measures in response to the COVID-19 pandemic, including those taken pursuant to the repeatedly renewed Emergency Decree, the ICJ said in a new briefing paper.
The ICJ underscores that the March 2020 declaration of a state of emergency in Thailand and a number of subsequent emergency measures purportedly taken to combat the COVID-19 outbreak, fail to comply with Thailand’s human rights obligations.
The paper focuses on four areas of concern, namely:
- the basis for and scope of the declaration of the emergency situation;
- the Emergency Decree measures;
- the limited and inadequate judicial scrutiny provided by the court in respect of such measures; and
- the problematic provision of legal immunity from prosecution of authorities exercising emergency powers.
The paper also raises concerns over the draft amendment of the Communicable Diseases Act (CDA) containing similar provisions to the Emergency Decree that are non-human rights compliant, including the limitation on exercise of jurisdiction by the courts. The draft was approved by the Cabinet in late 2020 and is expected to be sent to the Parliament soon.
The ICJ recommends that the Thai authorities:
- End the use of Emergency Decree as a basis for bringing criminal proceedings against persons for conduct in exercise of their protected rights to freedom of movement, expression and assembly as guaranteed under international and Thai law;
- Desist from derogating from any of its obligations under the International Covenant on Civil and Political Rights (ICCPR);
- Should ICCPR derogations be sought in the future, ensure that derogating measures are strictly necessary to meet a threat to the life of the nation, limited in duration, and proportionate to the existing specific threats, and that they not suspend the applicability of any right in its entirety;
- Repeal or amend provisions of the Emergency Decree so as to ensure its compliance with Thailand’s international legal obligations;
- Amend the CDA without delay and use it as the main legal framework to address the COVID-19 pandemic, in a manner consistent with Thailand’s international human rights obligations.
Briefing Paper Launch
The briefing paper was launched on 15 July 2021 as part of an event marking the 16th anniversary of the enactment of the Emergency Decree.
The launch was co-hosted by ASEAN Parliamentarians for Human Rights (APHR), Cross-Cultural Foundation (CrCF), International Commission of Jurist (ICJ) and the parliamentary committee on the Development of Politics, Mass Communication and Public Participation.
The launch included a webinar discussing the need for the emergency law reform. The webinar included as panellists:
- Professor Emeritus Vitit Muntarbhorn, Special Rapporteur on the situation of human rights in Cambodia
- Niran Pitakwatchara, Former National Human Rights Commissioner
- Anchana Heemmina, Founder, Duay Jai Group
- Prof. Dr. Munin Pongsapan, Dean of the Faculty of Law, Thammasat University
- Kasit Piromya, former Minister of Foreign Affairs and a current Board Member, ASEAN Parliamentarians for Human Rights (APHR)
- Pornpen Khongkachonkiet, Director, Cross-Cultural Foundation (CrCF)
- Sanhawan Srisod, Legal Adviser, International Commission of Jurist
- Adilan Ali-ishak, Member of the House of Representatives, Palang Pracharat Party
- Rangsiman Rome, Member of the House of Representatives, Move Forward Party
Legal Briefing in English and Thai.
The recording of the webinar is available both in English and Thai.
Explainer Video on human rights and COVID-19 emergency measures screened at the event is available in English and Thai.
Background
On 25 March 2020, the Thai government declared an “emergency situation” in all areas of Thailand, purportedly to combat the COVID-19 outbreak, in the exercise of its power under the Emergency Decree on Public Administration in Emergency Situation B.E. 2548. The Emergency Declaration has been extended 12 times, most recently on 25 May 2021 for a period between 1 June and 31 July 2021. A series of regulations containing several Emergency Decree measures have been periodically announced pursuant to Emergency Decree powers.
The ICJ has previously reviewed, assessed and made recommendations in relation to the implementation of Thailand’s Emergency Decree in three reports and briefings:
- More Power, Less Accountability: Thailand’s New Emergency Decree, released in August 2005;
- Implementation of Thailand’s Emergency Decree, released in July 2007; and
- Legal Briefing: The Implementation of Thailand’s Emergency Decree in Response to Protests in 2020, released in October 2020.
These publications revealed that a number of the legal and practical responses undertaken by the Thai authorities to address purported public emergencies in the past decades have not complied with rule of law principles and Thailand’s international legal obligations.
