The Decree has subsequently been invoked to impose a state of emergency in three provincial regions of Southern Thailand, Yala, Narathiwat and Pattan. It grants to the authorities the power to detain suspects without charges, conduct search and arrest operations without warrants, restrict freedom of movement, impose curfews, limit public gatherings, confiscate property, tap phones, and ban media coverage.
The International federation for Human rights (FIDH) and its member organization in Thailand, the Union for Civil Liberties of Thailand (UCL), express their deepest preoccupation at the various infringements of Thailand’s human rights obligations within the Decree which can be applied to the whole, or any part of the Kingdom. Indeed, inter alia:
1. Section 12 of the Decree authorizes Thai authorities to detain persons for up to 7 days without charge. Detention may be further extended by a court by periods of seven days, up to a maximum of 30 days when charges must be brought or the detainee released. Under the previous martial law, imposed on the Southern provinces prior to this Decree, persons could be detained for seven days, without further extension. Normal legal procedures allow arrest for periods of 48 hours after which the person arrested must be brought before a court. The new provision is in violation of Article 9 of the International Covenant on Civil and political rights (ICCPR), to which Thailand is a party, which provides that detained suspects must be promptly brought before a judge.
FIDH and UCL are also preoccupied by the fact that this prolonged detention may extend the already widespread use of torture currently reported during interrogations of suspects within the period of administrative detention. Access to a lawyer should be provided as early as the first hour of detention.
2. Furthermore, Section 9 of the Decree restricts media access to cover events of terrorism or violence, in violation of Article 19 of ICCPR. In arrests already made, access by the press has been denied. The Thai press has so far shown excellent maturity and discretion in reporting events in the South of Thailand. Now above all, the Government has need of a free and responsible press to win the agreement and approval of the people in the time of crisis in the South.
3. Section 17 of the Decree exempts competent officials and persons having identical powers and duties as competent officials involved in the state of emergency from any civilian, criminal or disciplinary liability. This section, we believe, is in violation of Article 2 of the ICCPR, which provides that “any person whose rights or freedoms are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity”. The organizations denounce this “impunity check for any violations”, in total contradiction with the rule of law, according to which no one should be above the law.
FIDH, UCL, along with a wide group of Thai Human rights NGOs, acknowledge the immensity of the problems in the Southern provinces of Thailand. However, the organizations believe that the current legal system offers sufficient tools to fight terrorism. Moreover, to effectively combat the scourge of violence, the organizations insist that the authorities of Thailand must engage in a political dialogue, promoting peace and development of the region, based on the respect for Human rights, including the ethnicity and the cultural rights of the population.
In any circumstances, as has been reaffirmed by numerous international bodies, the fight against terrorism must respect strictly human rights and humanitarian law. “The fight against terrorism is a fight for the respect of the rule of law that authors of acts of terrorism are infringing”, said Sidiki Kaba, President of the FIDH. “Thai authorities will loose their legitimacy and credibility in this important endeavor if they violate the principles they are fighting for”, added Boonyarattanasoontorn Jaturong, President of UCL, referring to the numerous violations of “non-derogable” Human rights contained in the Decree.
On 29 July, at the occasion of the examination of Thailand, the UN Human Rights Committee echoed the concerns expressed by civil society. It deplored that the Emergency Decree did “not explicitly specify or place sufficient limits on the derogations from the rights protected by the Covenant that may be made in emergencies”, as required by Article 4 of the ICCPR. It also affirmed that any detention beyond forty-eight hours without external safeguards should be prohibited. Finally, the Committee is concerned that Section 17 of the Decree would only reinforce the already existing “culture of impunity”.
UCL and FIDH recall that the Kingdom of Thailand acceded to the ICCPR in October 1996. Thailand is under an obligation to conform with all provisions of this international human rights instrument and recommendations issued by the Human Rights Committee.