In an announcement dated 29 June 2010 posted on its website, the Ministry of Foreign Affairs, Thailand responding to an open letter of the Asian Human Rights Commission (AHRC) on the reported shackling of detainees under the state of emergency imposed via the Emergency Decree on Public Administration in Emergency Situations, B.E. 2548 (2005) wrote that,
“The fundamental human rights of those arrested during the protests by the United Front for Democracy against Dictatorship (UDD) have been fully respected in accordance with the Thai Constitution and within the parameters of the International Covenant on Civil and Political Rights (ICCPR) and other relevant international human rights instruments to which Thailand is a party. Indeed, the Emergency Decree contains various safeguards that prevent any arbitrary actions by state officers.”
This statement is remarkable, because in fact the Emergency Decree has been written both to guarantee state officers impunity for arbitrary actions, and to place actions under its auspices firmly outside the parameters of the ICCPR.
This has been the opinion not only of the AHRC since the decree was introduced in 2005, but also of United Nations experts who monitor compliance with international law. In a recent open letter to the new president of the UN Human Rights Council, the AHRC pointed to the findings on the decree of the UN Human Rights Committee, which is responsible for reviewing state parties’ human rights records in terms of the ICCPR:
“The Committee is concerned that the Emergency Decree on Government Administration in States of Emergency which came into immediate effect on 16 July 2005… does not explicitly specify, or place sufficient limits, on the derogations from the rights protected by the Covenant that may be made in emergencies and does not guarantee full implementation of article 4 of the Covenant. It is especially concerned that the Decree provides for officials enforcing the state of emergency to be exempt from legal and disciplinary actions, thus exacerbating the problem of impunity. Detention without external safeguards beyond 48 hours should be prohibited (art. 4). The State party [Thailand] should ensure that all the requirements of article 4 of the Covenant are complied with in its law and practice, including the prohibition of derogation from the rights listed in its paragraph 2. In this regard, the Committee draws the attention of the State party to its general comment No. 29…” (CCRP.CO.84, 8 July 2005, para. 13)
General Comment No. 29 interprets aspects of article 4, which allows countries to derogate from their human rights obligations under the Covenant in certain specific circumstances. Among them, it points to the requirement that “the situation must amount to a public emergency which threatens the life of the nation”, underscoring that, “Not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation, as required by article 4, paragraph 1” (CCPR/C/21/Rev.1/Add.11, 24 July 2001, para. 2, 3). The UN Special Rapporteur on the independence of judges and lawyers has explained that for this criterion to be met, the situation must consist of “an exceptional danger, current or imminent, real and specific, which affects the entire nation to the extent that the measures for restricting or limiting rights allowed under normal circumstances are clearly inadequate” (A/HRC/4/25, 18 January 2007, para. 44).
It is doubtful that the protests in Bangkok against which the state of emergency was invoked meet this criterion. Certainly they were threatening to the life of the government towards which they were directed; however, there is no evidence that the life of the entire nation was in any way at risk, and therefore the justification for the present state of emergency under article 4 is at best tenuous. In any event, the government of Thailand has never taken any discernible steps in response to the recommendations of the Human Rights Committee concerning aspects of the Emergency Decree that are not in compliance with the ICCPR. Therefore, for the foreign ministry to claim that it is working within the parameters of the ICCPR through the Emergency Decree is patently false.
The committee’s recommendation to the government of Thailand concerning article 4 and the Emergency Decree was carefully noted by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, who on 18 July 2006 issued a press release calling on it “to repeal emergency regulations that violate human rights law”. Studying the application of the Emergency Decree in the three southernmost provinces, where it has been in effect since 2005, the Special Rapporteur noted that the government had “failed to act on previous calls to bring its emergency regulations into compliance with human rights law” and that,
“The emergency decree makes it possible for soldiers and police officers get away with murder… Impunity for violence committed by the security forces has been an ongoing problem in Thailand, but the emergency decree has gone even further and makes impunity look like the official policy.”
Again, there has been no discernible response or change in official policy concerning use of the decree since the time that the Special Rapporteur made this statement, and his analysis stands, as does his request to be able to make an official visit to Thailand, which has been pending for over five years.
The contents of the foreign ministry’s communiqué speak not to the reality of the situation in Thailand but to the ministry’s role as a propagandist. It could only issue this statement by completely ignoring the findings and recommendations of successive United Nations mandate holders. In this it is at least being consistent with the policy of the government of Thailand for most of the last decade, which has been to disregard virtually all international human rights standards and mechanisms.
The continued enforcement of the Emergency Decree will contribute not to the security of the people of Thailand but only to the continued decline in protections for their human rights and correspondingly, to the decline in respect for the law and for the institutions of government and justice in that country.
The Asian Human Rights Commission therefore categorically rejects the ministry’s characterization of the Emergency Decree as being in accordance with international law, and calls for the cabinet and prime minister not to renew the decree when it comes up for renewal tomorrow, 6 July 2010.
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.
