THAILAND: Arbitrary detention and harassment under the Emergency Decree in Thailand

HUMAN RIGHTS COUNCIL 
Fifteenth session, Agenda Item 4

A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general consultative status

THAILAND: Arbitrary detention and harassment under the Emergency Decree in Thailand

In a submission to the 14th session of the Human Rights Council, the Asian Legal Resource Centre (ALRC) described the use of arbitrary orders for interrogation of civilians in army camps and other facilities under emergency regulations during the violence between state forces and antigovernment protestors in Thailand in April-May 2010 (A/HRC/14/NGO/42, 17 May 2010). Noting the relationship between open violence and the range of possible less visible rights violations, the ALRC cited the precedent set by arbitrary interrogation and expressed concern about the potential of further grave violations of human rights under the cover of the Emergency Decree. Three months after the cessation of open violence, the Emergency Decree remains in place and the denial of liberty and abuse of state power in Thailand has expanded. This has been explicitly present in the use of arbitrary detention and harassment of antigovernment protestors during June-August 2010. 

Under the Emergency Decree on Government Administration in a State of Emergency (2005), the government decreed a State of Emergency in Bangkok and surrounding areas on 7 April 2010. The Emergency Decree gives blanket powers to state actors to resolve the State of Emergency, including by making arrests, censoring the press, restricting movement and using armed force. On 13 May 2010, the State of Emergency was expanded to include another 12 provinces in northern, northeastern, and central Thailand; by late May, it was expanded to be in force in a total of 24 provinces across the country. Under the decree, the declaration of emergency must be renewed every three months. Therefore, on 7 July 2010, the government renewed the decree for another three months in 19 provinces. In a series of subsequent decisions, the emergency decree was revoked in a number of provinces, and at the time of writing it remains in force in seven: Bangkok, Nonthaburi, Khon Kaen, Nakhon Ratchasima, Udon Thani, Pathumthani and Samut Prakan. The next date of renewal of the Emergency Decree is 10 October 2010. 

While noting the incremental revocation of the emergency decree, the ALRC remains concerned both about the specific conditions for detainees while the decree remains in force, as well as about the resurgence of heavy political control through security policing in Thailand of which the increasingly frequent use of emergency regulations is a key indicator. 

In this submission, we draw to the attention of the Council one recent case of arbitrary detention and one of harassment of a minor under the Emergency Decree. In both cases the individuals in question have been charged with violating sections 9(1)(2) of the Emergency Decree, which prohibits gatherings of groups of five people or more, instigating unrest, disseminating information which might scare the public, or intentionally distorting information to create misunderstanding about the state of emergency to a degree that affects national security, public order or public morals. 
The arrest of Mr. Sombat Boonngammanong on 27 June 2010 clearly illustrates the arbitrary nature of detention under the Emergency Decree and the threat to liberty posed by it. After the ouster of former Prime Minister Thaksin Shinawatra in the 19 September 2006 coup, Sombat ran a political commentary website critical of both the former PM and the military coup which ousted him.

1. On 26 June 2010, Sombat held a peaceful memorial at the site of killings that took place during the crackdown on anti-government protestors in Bangkok during April-May 2010. He tied ribbons to a signpost in remembrance of those who were killed, while some of those with him carried photographs of the violence. 
2. In response, on 27 June 2010, a court issued an order for his detention under the Emergency Decree. Because he could not be detained at an ordinary detention facility under the terms of decree, he was taken to the Border Patrol Police 1st Region Command Office in Pathumthani province. 
3. On 29 June 2010, Sombat filed a motion against his detention, requesting his release on the grounds that his detention was in violation of his rights to freedom of expression and peaceful gathering, as provided for in the 2007 constitution and international law. Although the court allowed the motion, on July 2 it ordered that Sombat be kept in custody for another seven days, stating that he had violated the terms of the decree prohibiting gatherings of more than five persons. 
4. On 9 July 2010, Sombat was released from arbitrary detention. At this time he was formally charged with violating the Emergency Decree by assembling in a group of more than five people.

Since his release, Sombat has continued to organize events to mourn the deaths of those civilians who were killed at the Ratchaprasong intersection during the crackdown by state security forces in April-May 2010. Every Sunday, people gather to tie red ribbons and engage in cultural activities remembering the dead in Bangkok. Although there have not yet been dispersals or arrests of the participants, their activities attract a large police presence every week. In an interview with Reuters on 16 July 2010, Sombat commented that after his release he is “fearful of going home and avoids speaking over the telephone.” 

On 16 July 2010, five students in Chiang Rai province (four from university, and one from high school) walked around the market, the clock tower, and the entrance to the provincial hall carrying signs criticising the Emergency Decree, and reading, “I saw people killed at Ratchaprasong.” On 20 July 2010, two participants, Chiang Rai University Rajabhat students Kittipong Nakakade, age 24, and Nitimethapon Muangmulkuldee, 23, as well as the high school student (name withheld), 16, were summoned and interrogated by the police.

1. On the evening of the protest, Police Lt. Col. Banyat Thamthong, Acting Deputy Provincial Police Commander of Chiang Rai, called the high school student’s mother to ask for her husband’s telephone number. After the mother hung up the telephone, three men appeared at her front door and identified themselves as plainclothes police. They asked her son who had persuaded him to join the protest and looked at her son’s computer. Although they asked her and her son to come with them to the police station, she refused and requested that they return with an official summons. Then, in the same evening, the police lieutenant colonel came to the house with a woman and they also searched her son’s computer. 
2. On the morning of 19 July 2010, police returned to the house with a summons and a search warrant. They took photos of the high school student’s bedroom and seized his notebook computer. The mother was instructed to bring her son to the police station on 20 July 2010 at 10am. She did so, and her son was then ordered to report to the Juvenile Observation and Protection Centre on 21 July 2010. Under law, the centre is required to be involved in cases involving minors under the age of 18.
3. On 21 July 2010, and 30 July 2010, the high school student reported to the centre for questioning. He was asked about his family and his parents’ income. He was asked about his friends and behaviour, including whether he had ever been arrested for a criminal offence, whether he drinks and smokes, whether he had modified his motorcycle, how many close friends he has, and whether he goes out late at night. In addition, he was also again asked why he joined the protest on 16 July, and advised to confess to obtain leniency from the court.
4. The high school student was ordered to return to the centre for a psychological examination on 2 August 2010. The examination took over three hours, and included answering questions and drawing and matching pictures. At the conclusion, he was instructed to report for psychotherapy for two days on 16 and 17 August 2010. This order to report for psychotherapy was made before the test results were interpreted fully. At this time, the high school student felt concerned that the timing of the psychotherapy would cause him to miss additional days of school, as he had already missed many days of school due to the interrogation and examination.
5. On 9 August 2010, the high school student and his mother met with the National Human Rights Commission (NHRC) in Bangkok. They told the NHRC all of the details of their case, including fears about surveillance and ongoing telephone intimidation and calls from the authorities.
6. On 10 August 2010, the mother received a telephone call from the Juvenile Observation and Protection Centre notifying her that she did not need to bring her son for psychotherapy on 16 and 17 August, as he had been found to be normal. The high school student still faces charges under the Emergency Decree.

The government of Thailand claims to be complying with the International Covenant on Civil and Political Rights in its application of the Emergency Decree. However, the government’s rationale for the imposition of the state of emergency does not meet the minimum requirement of the Covenant that the life of the entire nation be in danger, and certain specific terms of the Emergency Decree are clearly in breach of ICCPR. Any departures from the Covenant under a state of emergency must not only be justified by exceptional circumstances but must also be temporary. Once the immediate threat has passed that led to the emergency being imposed, it must be lifted. As the UN Special Rapporteur on the independence of judges and lawyers explained in his 2007 annual report to the Human Rights Council: “The principle of temporality implies a close connection between the duration of the state of emergency and the circumstance that gave rise to its introduction. Through violation of the principle of temporality states of emergency become permanent in nature, as a result of which the executive holds extraordinary powers” (A/HRC/4/25, 18 January 2007, para. 43). 

The Asian Legal Resource Centre is concerned that the use of the Emergency Decree to arbitrarily detain, interrogate, and harass civilians who have carried out peaceful protests mourning the loss of life signals the expansion of the temporary state of emergency to a more entrenched, potentially unending state of emergency. The case of the high school student in Chiang Rai who was ordered to undergo psychological examination is of particular concern as it indicates the emergence of a strategy not only to criminalize dissent in Thailand but also to use the medical profession as a tool of oppression. 

The life of the entire nation is not in danger and the continued use of the emergency decree poses a significant threat to liberty and human rights in Thailand. The ALRC therefore calls upon the Human Rights Council to condemn the continued application of the Emergency Decree as a breach of the State party’s obligations under the International Covenant on Civil and Political Rights, and as a cause for further violations of rights under international law. It also calls for the Council to urge that the government of Thailand provide full access not only to family members and lawyers of persons detained in connection with the recent political unrest in the country, irrespective of whether they be detained under the Emergency Decree or under ordinary criminal law, but also to international monitors, including the International Committee of the Red Cross. 

Finally, the government of Thailand must extend an invitation to the Special Rapporteur on the situation of extrajudicial, summary or arbitrary executions for a formal visit to the country that would include an investigation of the recent killings in Bangkok. Successive administrations in Thailand have assiduously ignored the standing request for a visit that the rapporteur first made after the deaths in custody of 78 men in army trucks in the south of the country in 2004–for which no one was ever punished–and the persistent failure of the government to respect the rapporteur’s request speaks to the lack of seriousness with which it appears to treat its obligations under the ICCPR.

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About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.