Jul 20, 2023 | DFF, Open Letters
To:
The European Union Parliament
The United States Congress
The Parliament of Canada
The Parliament of Australia
The Parliament of United Kingdom
The Parliament of New Zealand
Your Honors,
We, the ASEAN Parliamentarians for Human Rights, are writing to express our grave concerns about the state of human rights and democracy in Cambodia. Despite hollow attempts to prove the contrary, Cambodia is continuing on its descent into authoritarianism, which is of great concern not only to the people of Cambodia and the region, but also to the international community.
The situation related to human rights and democracy has drastically deteriorated in Cambodia in recent years, notably since Prime Minister Hun Sen used the country’s courts to dissolve the opposition Cambodia National Rescue Party (CNRP) in 2017. This occurred shortly after the CNRP demonstrated itself to be a real threat for Hun Sen’s Cambodian People’s Party in successive nationwide elections.
This year alone, Hun Sen has openly threatened opposition supporters with legal and physical violence, while his regime has shut down one of the country’s last remaining independent media outlets Voice of Democracy (VOD), threatened to shoot a former opposition leader with a rocket launcher for any attempt to step on Cambodian soil, and sentenced former CNRP leader Kem Sokha to 27 years of house arrest on trumped-up treason charges. This is on top of the forced defection of political prisoners, through means such as depriving those them of desperately needed medical care as well as the prior years of mass trials for both opposition party members and activists, invoking actions taken by the Khmer Rouge to silence, shut down, and even kill anyone acting as a dissident.
Earlier this month, the Cambodian National Election Commission (NEC) rejected the registration of the main opposition Candlelight Party for the upcoming July elections on administrative grounds, stating that not having their initial notarized registration document from 1998 prohibited them from running. In addition to this not being a requirement in last years’ commune elections, the document in question disappeared in 2017 when authorities raided CNRP headquarters, thus preventing it from being provided. This manufactured bureaucratic obstacle, designed to block the Candlelight Party from competing in the elections by any means possible, was then affirmed on May 25th by Cambodia’s Constitutional Council, essentially making this an unopposed election for the CPP. The amendment to the Election Law has further clamped down the freeness and fairness of the upcoming elections by prohibiting those who will abstain from voting in next month’s general elections from running as candidates in future polls. Furthermore, the new election amendment will impose criminal liability on citizens who disrupt and boycott the election.
The government of Hun Sen appears determined to drive the final nail into the coffin of Cambodia’s democracy, which is guaranteed by the Paris Peace Agreements of 1991. Any elections held under the present circumstances cannot possibly be free and fair, nor should any government created from such elections be recognized as legitimate by the international community.
While we appreciate the attention to the anti-democratic actions of the Cambodian government and the decision to not send official observers, the authoritarian nature of Hun Sen is not impacted by words or morality, only action.
We therefore urge you to take stronger actions to deny legitimacy to the July elections as it is becoming increasingly clear that Hun Sen is intent on using the elections as just another tool to consolidate his power. We implore you to take action as parliamentarians to use your legislative mandate in parliament to unequivocally denounce the 2023 electoral exercise in Cambodia as undemocratic. Through legislative action, we implore you to strongly call out the Cambodian government to end all forms political persecution and immediately and unconditionally release of political prisoners, advocate for the reinstatement of a politically diverse and inclusive environment, and call on an independent investigation into human rights violations and electoral irregularities, with the aim of ensuring accountability.
By taking legislative action, through a bill or resolution, condemning the human rights abuses of Hun Sen’s regime, you would join the global community in standing up for democracy and human rights, sending a clear message to the Cambodian government that its actions are unacceptable and will not be tolerated.
Cambodia, as a member of the United Nations and a signatory to various international agreements and treaties, has an obligation to uphold democratic values and ensure free and fair elections. Unless the international community takes strong actions for the 2023 election, nothing will prevent Hun Sen from further solidifying his decades-long dictatorship.
Your honors, as you yourselves have come to power in democratically-held elections with strong human rights protections, we are sure that you recognize and understand the importance of human rights and democracy to the prosperity and well-being of a nation. We have confidence in your commitment to these principles and hope that you will demonstrate that commitment by coming to the aid of the people of Cambodia.
Yours sincerely,
ASEAN Parliamentarians for Human Rights (APHR)
Jun 8, 2023 | DFF, Open Letters
8 June 2023
To: The United States Congress
Your Honors,
We, ASEAN Parliamentarians for Human Rights, are writing to express our grave concerns about the state of human rights and democracy in Cambodia.
Despite hollow attempts to prove the contrary, Cambodia is continuing on its descent into authoritarianism, which is of great concern not only to the people of Cambodia and the region, but also to the United States.
The situation related to human rights and democracy has drastically deteriorated in Cambodia in recent years, notably since Prime Minister Hun Sen used the country’s courts to dissolve the opposition Cambodia National Rescue Party (CNRP) in 2017. This occurred shortly after the CNRP had run Hun Sen’s Cambodian People’s Party (CPP) close in successive nationwide elections.
This year alone, Hun Sen has openly threatened opposition supporters with legal and physical violence, while his regime has shut down one of the country’s last remaining independent media outlets Voice of Democracy (VOD), threatened to shoot a former opposition leader with a rocket launcher for any attempt to step on Cambodian soil, and sentenced former CNRP leader Kem Sokha to 27 years of house arrest on trumped-up treason charges. This is on top of the forced defection of political prisoners, through means such as depriving those them of desperately needed medical care as well as the prior years of mass trials for both opposition party members and activists, invoking actions taken by the Khmer Rouge to silence, shut down, and even kill anyone acting as a dissident.
Earlier this month, the Cambodian National Election Commission (NEC) rejected the registration of the main opposition Candlelight Party for the upcoming July elections on administrative grounds, stating that not having their initial notarized registration document from 1998 prohibited them from running. In addition to this not being a requirement in last years’ commune elections, the document in question disappeared in 2017 when authorities raided CNRP headquarters, thus preventing it from being provided. This manufactured bureaucratic obstacle, designed to block the Candlelight Party from competing in the elections by any means possible, was then affirmed on May 25th by Cambodia’s Constitutional Council, essentially making this an unopposed election for the CPP.
The government of Hun Sen appears determined to drive the final nail into the coffin of Cambodia’s democracy, which is guaranteed by the Paris Peace Agreements of 1991. Any elections held under the present circumstances cannot possibly be free and fair, nor should any government created from such elections be recognized as legitimate by the international community.
People like Hun Sen are not impacted by words or morality, only action. Such as those recently taken by the United States against Bangladesh, to help ensure that there would be, “free, fair, and peaceful elections.” By restricting visas for Bangladeshis who undermine the democratic process in their upcoming election, the United States has proven that the support for democracy is real and that there will be consequences for those who oppose it.
As the United States is willing to do so with Bangladesh, similar actions must be taken with Cambodia, not just on human rights grounds, but because the more authoritative it becomes, the likelier it is to work in concert with countries that are in opposition to United States’ interests. Such sanctions should be enacted against not merely the criminal regime itself, but against those who support it, allowing for such gross violations of human rights. At a minimum, this should include the armed forces who are being used by Hun Sen to intimidate and are ready to kill, the business tycoons that help support the regime financially through means such as illegal deforestation, and the judicial bodies, including both judges and election commissions, that allow the mass trials and this sham election to take place.
While we and the international community appreciate your State Department’s recent comments of being “deeply troubled” by the anti-democratic actions of the Cambodian government and the decision to not send official observers, we implore you, members of Congress, to help the United States take stronger action. While critical words show Cambodia and the rest of the world how the United States feels about recent and upcoming events, unfortunately Cambodians and the rest of the region require more than words. Authoritarianism is a global threat that continues to grow, especially in Southeast Asia. Governments throughout the region have been taking unprecedented action against dissent and opposition, and Cambodia’s success in destroying the democratic process without international intervention will provide other countries with the blueprint to do so as well.
We therefore urge the United States to pressure the Cambodian government to unconditionally release all political prisoners, halt the constant harassment and prosecution of political opponents, and allow for the will of the people to prevail through a free and fair electoral process. Thus creating an environment that allows for opposition parties to register for and compete in the upcoming elections.
If the Hun Sen regime persists in trying to hamstring the opposition, then the United States must refuse to accord legitimacy to July elections as it is becoming increasingly clear that Hun Sen is intent on using the elections as just another tool to consolidate his power.
Unless the international community takes some form of action now, nothing will prevent Hun Sen from further solidifying his decades-long dictatorship by eliminating any semblance of a democratic system.
Your honors, as you yourselves have come to power in democratically-held elections with strong human rights protections, we are sure that you recognize and understand the importance of human rights and democracy to the prosperity and well-being of a nation. We have confidence in your commitment to these principles and hope that you will demonstrate that commitment by coming to the aid of the people of Cambodia.
Yours sincerely,
ASEAN Parliamentarians for Human Rights (APHR)
May 19, 2023 | DFF, Open Letters
To: G7 Leaders
H.E. Justin Trudeau, Prime Minister of Canada
H.E. Emmanuel Macron, President of France
H.E. Olaf Scholz, Chancellor of Germany
H.E. Giorgio Meloni, Prime Minister of Italy
H.E. Fumio Kushida, Prime Minister of Japan
H.E. Rishi Sunak, Prime Minister of the United Kingdom
H.E. Joseph R. Biden, President of the United States of America
19 May 2023
Your Excellencies,
We, ASEAN Parliamentarians for Human Rights, are writing to express our grave concerns about the state of human rights and democracy in Southeast Asia, particularly with regard to Myanmar and Cambodia.
We are monitoring the increasing authoritarian tendencies in the region, with continued human rights violations and attacks on political opponents and activists by authoritarian governments in Brunei, Viet Nam, and Lao PDR, as well as a trend of shrinking civic space, even in nominally democratic countries such as Indonesia, Singapore and the Philippines. We are deeply troubled by these developments, and we believe that if the situations in Myanmar and Cambodia are allowed to go on without a serious response from the international community, repressive and undemocratic regimes will be further emboldened, endangering the progress in democracy and human rights that has been achieved in the region in the past few decades.
Since the coup d’etat led by Senior General Min Aung Hlaing in February 2021, the political and humanitarian situation in the country has continued to deteriorate and has reached alarming levels. In the past two years, the Myanmar military has waged an all-out war on its own people, through he arbitrary arrests of thousands of anti-junta activists and their family members; the routine use of torture of detainees, often with lethal consequences; the shooting of unarmed protesters, air strikes against civilians in Myanmar’s ethnic areas, the burning of whole villagers, and extrajudicial killings.
Last year, the junta also executed four political prisoners, including former lawmaker Phyo Zeya Thaw and prominent activist Kyaw Min Yu, widely known as ‘Ko Jimmy’. These death sentences were the first known judicial executions in Myanmar since 1988 and show the increasing brutality of Min Aung Hlaing’s regime.
Most recently, air strikes in the Sagaing Region have killed more than 160 civilians, including children. According to an investigation by Human Rights Watch, the Myanmar military used “thermobaric” munitions during the air strikes, a violation of international human rights law and an apparent war crime.
Throughout all these atrocities, the junta has largely gone unchecked. While ASEAN leaders agreed on a Five-Point Consensus on Myanmar with Min Aung Hlaing in April 2021, the junta leader has since clearly demonstrated that he has no intention to abide by the agreement, and ASEAN leaders have displayed little desire to pressure him to do so. The latest statement from the regional bloc following the 42nd ASEAN Summit earlier this month shows an utter lack of urgency and gives little hope that ASEAN will change its approach to Myanmar.
The International Parliamentary Inquiry into the global response to the Myanmar coup (IPI), which was organized by APHR, wrote in its final report last year that the international community has largely failed to support the pro-democracy movement in Myanmar. It is more crucial than ever to correct this failure and make sure that the junta faces consequences for its actions and put an end to their ability to bring further death and destruction upon the people of Myanmar.
We therefore urge the G7 to take swift and firm measures against the illegal military junta led by Senior General Min Aung Hlaing, and provide real assistance to the pro-democracy forces in Myanmar. Those measures should include targeted economic sanctions against the military junta, a comprehensive arms embargo including on aviation fuel, and referral of the situation in Myanmar to the International Criminal Court or the establishment of an ad hoc tribunal.
Another worrying situation is the one in Cambodia, whose continuing descent into authoritarianism is of great concern and does not bode well for the region. The situation related to human rights and democracy has drastically deteriorated in Cambodia in recent years, notably since Prime Minister Hun Sen used the country’s courts to dissolve the opposition Cambodia National Rescue Party (CNRP) in 2017, shortly after it had run his Cambodian People’s Party (CPP) close in successive nationwide elections.
This year alone, Hun Sen has openly threatened opposition supporters with legal and physical violence, while his regime has shut down one of the country’s last remaining independent media outlets Voice of Democracy (VOD) and sentenced former CNRP leader Kem Sokha to 27 years of house arrest on trumped-up treason charges.
Earlier this week, the Cambodian National Election Commission (NEC) rejected the registration of the main opposition Candlelight Party for the upcoming July elections on administrative grounds, in what was clearly a manufactured bureaucratic obstacle designed to block the Candlelight Party from competing in the elections by any means possible.
The government of Hun Sen appears determined to drive the final nail into the coffin of Cambodia’s democracy, which is guaranteed by the Paris Peace Agreements of 1991. Any elections held under the present circumstances cannot possibly be free and fair.
We therefore urge the G7 to pressure the Cambodian government to unconditionally release all political prisoners, halt the constant harassment and prosecution of political opponents, and allow for the will of the people to prevail through a free and fair electoral process, first by creating an environment that allows for opposition parties to register for and compete in the upcoming elections.
If the Hun Sen regime persists in trying to hamstring the opposition, then the G7 must refuse to accord legitimacy to July elections as it is becoming increasingly clear that Hun Sen is intent on using the elections as just another tool to consolidate his power.
Unless the international community takes some form of action now, nothing will prevent Hun Sen from further solidifying his decades-long dictatorship by eliminating any semblance of a democratic system.
Your Excellencies, as you yourselves have come to power in democratically-held elections in countries with strong human rights protections, we are sure that you recognize and understand the importance of human rights and democracy to the prosperity and well-being of a nation. We have confidence in your commitment to these principles and hope that you will demonstrate that commitment by coming to the aid of the people of Myanmar and Cambodia.
Recognizing the powerful role you play as leaders of the largest advanced economies in the world, we urge you to take immediate and decisive action to change the course in both countries. Doing so will have a significant impact on neighboring countries in Southeast Asia and will pave the way for a more politically stable region where lasting peace becomes attainable and where economic development can take place with the people’s best interests at the center.
Sincerely,
ASEAN Parliamentarians for Human Rights (APHR)
Apr 18, 2023 | DFF, Open Letters
To: The Member States of the United Nations Security Council
CC: The United Nations Secretary-General
17 April 2023
Open Letter: The United Nations Security Council’s meeting on Myanmar must lead to firm measures against the junta
Your Excellencies,
We, the undersigned 546 Myanmar, regional and international civil society organizations (CSOs), welcome the United Kingdom’s request for an urgent Security Council discussion on Myanmar to address the illegal military junta’s worst civilian massacre since its failed coup, as well as the junta’s categorical refusal to comply with Security Council Resolution 2669 on Myanmar (December 2022). This “Any Other Business” discussion on 13 April must be followed by a dedicated Council meeting on the situation in Myanmar that leads to punitive measures against the junta under Chapter VII of the UN Charter.
On Tuesday 11 April 2023, the illegal military junta in Myanmar launched an aerial attack on a civilian gathering of around 300 people in Pa Zi Gyi Village, Kanbalu Township, Sagaing Region. At least 168 people were killed, including 24 women and 40 children. During the attack, a junta’s fighter jet flew over the village in the morning and dropped two bombs on the gathering. It was followed by a junta helicopter gunship that then opened fire on the crowd. Some of the victims’ bodies were so badly maimed they could not be identified. A second attack on the same location was launched by the junta in the evening, with four more bombs dropped, while victims’ bodies were still being retrieved.
The junta’s actions are a flagrant violation of UN Security Council Resolution 2669, which demanded “an immediate end to all forms of violence throughout the country” (OP1). Yet, since the Security Council adopted the Resolution in December 2022, the military junta has only escalated its campaign of terror and violence against the people of Myanmar.
The airstrike on Pa Zi Gyi Village came just one day after junta airstrikes in Va and Waibula Villages of Falam Township in Chin State, which killed nine civilians and destroyed homes and schools. Throughout March 2023, the junta’s so-called “Ogre Column” has carried out a series of raids on villages in southern Sagaing Region, massacring more than 30 people, including children, and decapitating and dismembering victims’ bodies. On 11 March, junta forces killed 29 civilians, including three monks, at a monastery in Pinlaung Township, Shan State. On 14 and 16 February 2023, the junta’s jet fighters dropped bombs in Mutraw District, Karen State, destroying two rice warehouses and seven schools.
Last week, the UN Human Rights Council adopted Resolution on Myanmar (A/HRC/52/32) by consensus that condemned the junta’s deliberate, widespread, indiscriminate and disproportionate use of force against civilians. The resolution referred directly to the junta’s airstrike against a school in Let Yet Kone Village, Sagaing Region in September 2022 that killed 11 children, and its airstrike one month later targeting a concert in Hpakant, Kachin State, that killed more than 60 people. The Human Rights Council Resolution demanded that the junta immediately cease all air strikes. The junta responded with the April 11 attack on Pa Zi Gyi Village.
At the same time as launching ground and increasing aerial attacks on civilians in many states and regions where the people’s resistance movement has taken strongholds, the junta is deliberately forcibly displacing people and cutting off humanitarian access to vast parts of the country. According to the most recent figures from the UN Office for the Coordination of Humanitarian Affairs (OCHA), 1.8 million people are now displaced inside Myanmar, but this number of displacements is likely higher. The junta is deliberately fuelling a nationwide humanitarian emergency to advance its political and military agenda.
Excellencies, the military junta has no regard for the lives of the Myanmar people, no regard for the rule of law, and no regard for international peace and security. The junta will not respond to words, only to action. Therefore, we call on the UN Security Council to adopt firm measures under Chapter VII of the UN Charter to enforce the military junta’s compliance with Resolution 2669. Those measures should include targeted economic sanctions against the military junta, a comprehensive arms embargo including on aviation fuel, and referral of the situation in Myanmar to the International Criminal Court or the establishment of an ad hoc tribunal.
Resolution 2669 also calls for “concrete and immediate actions, noting the military’s commitments to ASEAN Leaders, to effectively and fully implement ASEAN’s Five Point Consensus” (OP6). But there will be no progress made towards the implementation of the Five Point Consensus while the junta’s violence continues and its use of airstrikes against civilians increases. If the Security Council does not act now, we fear the crisis in Myanmar will rapidly reach the point of no return.
For more information, please contact:
Signed by 546 civil society organizations, including 248 CSOs who have chosen to not disclose their name.
Click here for the full list of signatories.
Dec 9, 2022 | DFF, Open Letters
The Honorable James Cleverly
Secretary of State for the Foreign, Commonwealth & Development Office
King Charles Street
London
SW1A 2AH
United Kingdom
9 December 2022
Open letter to UK Foreign Secretary: Sanction all companies involved in supplying aviation fuel to Myanmar
Dear Minister,
To mark International Human Rights Day and in solidarity with the Myanmar people who bravely continue to defend their rights and democracy against the Myanmar military junta, we, the 516 undersigned Myanmar, regional and international organizations, call on the Government of the United Kingdom (UK Government) to immediately take action to ensure no British companies is involved, directly or indirectly, in the supply of aviation fuel to the Myanmar military junta. We further call for your decisive, stronger actions to end the Myanmar military’s onslaught of horrendous crimes.
The illegal coup attempt launched by the Myanmar military in February 2021 has led to gross human rights violations nationwide, and caused an unprecedented human rights and humanitarian crisis. Terrorizing attacks by the junta, most notably airstrikes, have taken more than 2,500 lives and displaced over 1.2 million people, with exact numbers are expected to be much higher. Civilians have been consistently targeted and under constant threat of aerial attacks, including in schools, medical facilities, religious sites and people fleeing for their lives.
The junta’s intensified aerial attacks have been enabled by aviation fuel, supplied and brokered by foreign companies. The supply chain of aviation fuel from foreign ports have direct links to war crimes being committed daily by the junta. We note that British companies have provided insurance services to vessels delivering aviation fuel to Myanmar. As long as the supply chain is allowed to continue, the junta’s atrocities will take more lives and exacerbate the massive displacement. The junta’s countless war crimes and crimes against humanity have been permitted to rage on for the past 22 months. It is time the international community issued a complete ban of arms flow to cut its supply to this international criminal entity.
The UK Government’s commitment to values of democracy and human rights must be reflected in your responses in effective and meaningful actions to address the deepening catastrophes in Myanmar. We note the UK Government’s previous actions in support of the Myanmar people’s efforts to end this illegal attempted coup to protect the rights of the Myanmar people, including sanctions on war criminals and junta-linked businesses, and support for the opening of a National Unity Government’s office in your country who legitimately represents the Myanmar people. We further welcome the UK Government’s delayed support for The Gambia case against Myanmar at the International Court of Justice. However, more decisive, practical actions are urgently needed to end ongoing aerial attacks and atrocities in Myanmar. Your government’s pledge to address the conflict-related gender violence must also prioritize women and girls in Myanmar’s plight.
We earnestly appeal to you to immediately sanction Burmese companies and state-owned enterprises involved in the supply of aviation fuel to the junta. We further call on the UK Government to impose an immediate ban on British companies involved in any aspect of aviation fuel supply to Myanmar. It is essential that the UK Government ensure sanctions on the delivery of aviation fuel to Myanmar which covers the provision of services such as insurance, accreditation and verification services to vessels and infrastructure used to supply aviation fuel to Myanmar. As the Myanmar military has previously seized commercial-grade aviation fuel from suppliers, we believe that a complete ban on supplying aviation fuel to Myanmar is essential.
We welcome the role the UK Government has played in seeking the coordination of the implementation of sanctions to date. We request you seek allies such as Australia, Canada, the United States and the European Union to join you in sanctioning aviation fuel supplies to Myanmar. As Myanmar civil society, we are aware that such sanctions on aviation fuel could impact commercial domestic flights. However, we believe that the humanitarian benefit of reducing atrocious airstrikes far outweigh any inconvenience caused by sanctioning fuel supplies.
Lastly, we entrust the UK Government to pass a UN Security Council resolution which places a comprehensive global arms embargo on Myanmar. The resolution must cover all weapons, munitions and equipment, as well as military training and assistance.
As the people of Myanmar sacrifice their livelihood and future for a federal democratic Myanmar which upholds human rights and equality for all, the UK Government must utilize all tools at your disposal to stop atrocities committed by the illegal military junta on a daily basis and protect the lives of Myanmar civilians.
For more information, please contact:
Signed by 516 Myanmar, regional and international organizations including 312 organizations who have chosen to not disclose their name.
Click here for the full list of signatories.
Nov 9, 2022 | DFF, Open Letters
8 November 2022
Re: Thai officials must drop all the ongoing prosecutions under the Emergency Decree
Dear Honorable Ambassador,
We, the undersigned non-governmental organizations, are writing to express our serious concern regarding the ongoing impact of the implementation of the Emergency Decree on Public Administration in Emergency Situation B.E. 2548 (“Emergency Decree”) in response to the Covid-19 pandemic in Thailand. We are troubled by reports of the continuing prosecution of individuals charged under the Emergency Decree, despite the end of the declaration of the “emergency situation” in all areas of Thailand as well as the effect of regulations, announcements, and orders issued thereunder.
We urge you to call on Thailand to cease all intimidation, harassment and prosecution of all individuals solely for peacefully exercising their rights to freedom of expression, information, peaceful assembly, movement, and public participation through the abuse of laws and administrative regulations, and to immediately drop all charges, issue non-prosecution orders, and refrain from further charges, against any individual, including those facing prosecution solely for peacefully exercising their human rights for alleged violation of the Emergency Decree.
Purportedly to combat the Covid-19 outbreak, Thailand had been operating under a state of emergency since 26 March 2020,[1] with the executive government having extended the declaration of an emergency situation 19 times since then. During this period, a series of regulations containing several Emergency Decree measures have been periodically announced pursuant to Emergency Decree powers. These include several vague and overbroad restrictions on the rights to freedom of movement, expression, peaceful assembly and public participation.
On 29 September 2022, Prime Minister Gen. Prayuth Chan-o-cha issued an announcement titled “Repeal of the Declaration of Emergency Situations in the Kingdom and other Relevant Announcements, Regulations, and Orders” (hereinafter “Announcement”). This Announcement—which came into force on 1 October 2022—effectively repealed the declaration of an emergency situation prompted by the spread of Covid-19 around the country, and at least 47 regulations, announcements and/or orders issued under the Emergency Decree, as well as announcements and orders made under other specific laws with the stated intent of combatting the outbreak. In total, the Emergency Decree was in force for more than two-and-a-half years.
Over the past two years, there has been numerous political and other protests. Among the demands typically made by political protesters are: (1) the resignation of the prime minister and a new election; (2) amendments to the 2017 Constitution; (3) no retaliation against or prosecution of activists peacefully exercising their human rights; and (4) reforms to the institution of the monarchy. The rise of multiple political groups created challenges in balancing competing objectives, between controlling the spread of Covid-19 and respecting and protecting the human rights of everyone, including to freedom of peaceful assembly.
We have reviewed, assessed and made recommendations in relation to the implementation of Thailand’s Emergency Decree in response to the Covid-19 outbreak. Our analysis has revealed that a number of the legal and practical responses undertaken by the Thai authorities purportedly to address public emergencies in the past two years have not complied with rule of law principles and international legal obligations.[2] In particular, bringing criminal charges against and prosecuting persons under the Emergency Decree for simply exercising their rights to expression and peaceful assembly could not be considered necessary and proportionate even during the pandemic; moreover, it did not adhere to the principle of legality as required by international human rights law, and was inconsistent with the legitimate purpose of ensuring the protection of public health.
Emergency Decree Cases
High number of cases corresponds with periods of political movements
Based on information from Thai Lawyers for Human Rights (TLHR),[3] from May 2020[4] to September 2022, at least 1,468 individuals in 661 cases have been charged with and/or prosecuted under the Emergency Decree in incidents arising out of public protests (“Emergency Decree cases”).[5] Out of them, at least 241 individuals in 157 cases are children (i.e., under the age of 18).
Criminal proceedings under the Emergency Decree make up the highest number of individuals and cases with respect to political trials in the past two years, followed by lèse-majesté cases under Section 112 of the Criminal Code.
Emergency Decree cases can be categorized as follows:
- From 26 March 2020 to 18 July 2020, which is the period before the Free Youth protest,[6] there were seven cases;
- From 15 to 22 October 2020 during which time the government declared a state of “severe emergency” in response to political demonstrations in 2020, there were 35 cases;[7]
- There are 88 cases resulting from violations of the curfew, which was imposed in accordance with the Emergency Decree. Most of these cases took place during the period of the Din Daeng protest from August to October 2021 and are accompanied by charges under the Communicable Disease Act B.E. 2558 (2015);
- There are 109 “car mob” cases —most of which occurred between July and October 2021— where individuals allegedly drove their vehicles to participate in protests at different locations in the country;[8] and
- There are 41 Emergency Decreecases where individuals were also charged under the Public Assembly Act B.E. 2558(2015). The police brought two charges—violations of Emergency Decree andPublic Assembly Act—against individuals simultaneously despite the fact that the Public Assembly Act is expressly not applicable in times of state of emergency. Prosecutors should immediately drop the Public Assembly Act charges in these 41 cases for that reason.
In at least 41 of the 661 Emergency Decree cases, the defendants “confessed” their guilt at the trial stage. In most of these cases, the court sentenced the defendants to a fine or suspended their sentences. Public prosecutors issued non-prosecution orders in at least 23 cases. Thai courts acquitted the defendants in 28 cases. Thai courts convicted the defendants under the Emergency Decree in eight cases. Thus far, only 87 cases have been concluded while more than 574 cases are still at the investigation, trial or appeal stages.[9]
During the above-noted periods, laws were enforced in an incoherent manner, as exemplified by the numerous regulations issued under the Decree at different times. Such confusion demonstrate the impropriety of reliance on the Emergency Decree to deal with a public health emergency. For instance, a severe state of emergency was declared in response to political demonstrations and implemented alongside with the existing state of emergency declared with the stated view of controlling Covid-19. At times, regulations issued under the Emergency Decree, which are secondary legislation that rank hierarchically lower than primary legislation, appeared aimed at overriding primary laws. The regulations provided that the Public Assembly Act B.E. 2558(2015) was to be applied despite the Public Assembly Act clearly stating that it is not to be used during a state of emergency.[10] In April 2022, the Lopburi District Court decided that the government issued an unlawful Emergency Decree measure—i.e. Announcement of the Chief Official Responsible for Remedying the Emergency Situation in Relation to the Security Matters (No. 9), dated 3 August 2021, Regarding the Prohibition of Assembly, Carrying out of Activities, or Gathering that Risk Spreading Covid-19—because it was endorsed by the authority without the power to do so.[11]
574 cases are still ongoing despite the end of the Emergency Decree
The repeal of the Emergency Decree, as well as the regulations, announcements, and orders issued thereunder, have not automatically resulted in the dismissal of cases where individuals faced criminal prosecution in relation to the violations of Emergency Decree measures enacted with the stated view of stopping the spread of Covid-19.
Pursuant to Section 18 of the Emergency Decree, violating the Decree measures may incur imprisonment for a term not exceeding two years or a fine of up to 40,000 baht (approx. USD$1,070), or both.
Five hundred and seventy-four cases, or 86% of all Emergency Decree cases (354 at investigation stage, 190 at trial stage, and 30 at appeal stage), are still ongoing, despite the fact that the spread of Covid-19—the purported reason for declaring a state of emergency in the first place—is now under control, and the use of the Emergency Decree has formally ended.
We consider that the Thai authorities must immediately drop all charges, issue non-prosecution orders, and refrain from further charges, against those facing prosecution for alleged violation of the repealed Emergency Decree for the following reasons:
Some measures adopted are inconsistent with Thailand’s obligations under international human rights law
The restrictions that were issued pursuant to the Emergency Decree include the imposition of night-time curfew and the prohibition of “assembly, carrying out of activities, or gathering at any place that is crowded, or to commit any act which may cause unrest”.
Under international human rights law, and particularly the International Covenant on Civil and Political Rights (ICCPR), to which Thailand is a party, human rights and fundamental freedoms may be limited only under very narrow conditions and circumstances and for a restricted set of purposes, including to address a public health emergency. Any such limitations must be strictly necessary and proportionate to their purpose and be non-discriminatory in purpose and effect.
However, the above noted Emergency Decree measures and the manner they are applied do not comply with these conditions. They serve to limit freedom of peaceful assembly, protected under Article 21 of the ICCPR; freedom of expression and information, protected under Article 19 of the ICCPR; freedom of movement, protected under Article 12 of the ICCPR; and the right to take part in the conduct of public affairs, protected under Article 25 of the ICCPR. They have not been accompanied by a clear delineation of what they would entailed in the specific context of the situation targeted by these measures, as required under the principles of legality in accordance with the ICCPR. In the context of Covid-19, the imposition of criminal punishment against the violators of the Decree also extends far beyond the scope of public health measures strictly necessary to protect the rights to life and health, constituting a disproportionate punishment.[12] There has been no evidence to suggest that any of the political activities targeted under the Emergency Decree contributed to an increased spread of Covid-19, nor has there appeared to be evidence publicly presented by any State authorities.
Pursuant to Article 4 of the ICCPR, where there is a public emergency so severe that it threatens the life of the nation, certain ICCPR rights may be subject to necessary and proportionate derogations, but this may only be done to the extent strictly required by the exigencies of the situation. However, despite the relatively low infection rates during several periods, the Thai government has failed to explain the reason why it deemed necessary to resort to the Emergency Decree powers as required under Article 4 of the ICCPR as a condition for derogation.[13] In addition, the emergency situation was notified by the Thai government to the UN Secretary-General effective from 26 March to 30 June 2020.[14] In the absence of any subsequent notification to the UN Secretary-General concerning the extensions of the state of emergency, it had generally been presumed that Thailand was not purporting to derogate from any ICCPR rights beyond 30 June 2020.[15]
Against individuals exercising their rights to freedom of expression and peaceful assembly
The rights to freedom of expression, peaceful assembly, movement and public participation are also guaranteed by the Constitution of the Kingdom of Thailand B.E. 2560 (2017). Among others, Section 34 guarantees a person’s right to “enjoy the liberty to express opinions, make speeches, write, print, publicize and express by other means;” and Section 44 ensures “a person shall enjoy the liberty to assemble peacefully and without arms.”
Considering the number of activists charged for violating the Emergency Decree, including violations of curfew and the prohibition on public assembly, it appears that emergency measures were adopted in their broad terms at least in part not to address a real public health emergency, but rather for other purposes, such as to target political activists who were exercising their rights to freedom of expression, public participation and peaceful assembly.
Based on the TLHR’s statistics on Emergency Decree cases,[16] public prosecutors issued non-prosecution orders in 23 cases, and the court acquitted the defendants in 28 cases. The justifications given by the public prosecutors were varied and included: there was insufficient evidence; the protest was not congested; and/or protesters had the right to peacefully assemble. One reason the court gave for acquitting the defendants is that to assemble in public is to exercise the right protected under the Constitution. Notwithstanding these acquittals, the fact that such criminal proceedings were brought against the activists in the first place contributed to their fear or exhaustion, put an unnecessary burden and had a “chilling effect” on them, and discouraged the exercise of human rights as far as the individual activists were concerned and more broadly within the general public.
Impose an unnecessary burden on the justice system resources
The prosecution of the Emergency Decree cases put an undue burden on the justice system and thereby has effectively hobbled the administration of justice in the country. In the past two years and a half, only 87 out of 661 Emergency Decree cases have been concluded. More than 50% of the cases (i.e., 354 cases) are still at the investigation stage. To prosecute such cases, the Thai justice system must utilize a significant amount of its resources, including financial, human, and time resources, for conduct that is no longer illegal following the adoption of the Announcement. Doing so would divert the State’s resources from prosecuting other ordinary and essential judicial matters.
Recommendations
We respectfully call on your government to urge the Thai government to immediately cease the intimidation, harassment or prosecution of all individuals solely for peacefully exercising their rights to freedom of expression, information, and peaceful assembly.
Thai authorities should immediately drop all charges, cease investigation of these cases, issue non-prosecution orders, withdraw cases or their appeals before the court, desist from appealing the acquittals, including on the basis that the underlying conduct is no longer illegal, and refrain from bringing further charges, against individuals facing prosecution for alleged violation of the Emergency Decree. Alternatively, the prosecutor should exercise their power under Section 21 of the Public Prosecutor Organization and Public Prosecutors Act B.E. 2553 (2010), where a case may be referred to the attorney general should they believe prosecution is not in the public interest or would affect the safety, security, or important interests of the nation. The attorney general, in turn, has the power not to indict or appeal, as well as to withdraw cases.
Additionally, the Thai authorities should consider quashing the convictions of individuals under the Emergency Decree. The Thai authorities should also ensure and facilitate equal access to prompt, accessible and effective remedies and reparation for all individuals who have had their rights violated as a result of intimidation, harassment or prosecution simply for the exercise of human rights.
Sincerely,
24 international human rights organizations
Click here for full list of signatories.
[1] Declaration of an Emergency Situation in all areas of the Kingdom of Thailand, available at: https://interaffairs.psu.ac.th/images/download/covid/Declaration_of_Emergency_in_Thailand.pdf
[2] ‘The Implementation of the Emergency Decree in Response to the COVID-19 Pandemic in Thailand – A Brief Paper’, International Commission of Jurists (July 2021), https://www.icj.org/wp-content/uploads/2021/07/FINAL_APP270601_TFH_Draft_COVID_19_ED_LEGAL_BRIEFING_proofread.pdf (“ICJ Briefing on the Emergency Decree in Response to the COVID-19”)
[3] ‘กันยายน 65: จำนวนผู้ถูกดำเนินคดีทางการเมืองยอดรวมอย่างน้อย 1,860 คน ใน 1,139 คดี’, Thai Lawyers for Human Rights (4 October 2022), https://tlhr2014.com/archives/49210
[4] This date marks the period when protesters started to conduct political activities again after a state of emergency was declared in March 2020.
[5] Many individuals are prosecuted in multiple cases.
[6] Pro-democracy protests, led by students from the Free Youth group and the Student Union of Thailand.
[7] For the legal briefing analyzing the implementation of Thailand’s Emergency Decree on Public Administration in Emergency Situation B.E. 2548 (2005) in response to protests in 2020, see: ‘Thailand: lifting of serious emergency situation in Bangkok is welcome, but emergency laws remain deeply problematic – ICJ Briefing Paper’, International Commission of Jurists (27 October 2020), https://www.icj.org/thailand-lifting-of-serious-emergency-situation-in-bangkok-is-welcome-but-emergency-laws-remain-deeply-problematic-icj-briefing-paper/.
[8] ‘1 ปี คาร์ม็อบไล่ประยุทธ์: สรุปคดีทั่วไทยไม่น้อยกว่า 109 คดี ศาลยกฟ้องไป 5 คดี อัยการสั่งไม่ฟ้อง 4 คดี’, Thai Lawyers for Human Rights (July 3, 2022), https://tlhr2014.com/archives/45616.
[9] ‘แม้ยกเลิกสถานการณ์ฉุกเฉิน แต่คดี พ.ร.ก.ฉุกเฉินฯ จากการชุมนุม กว่า 574 คดี ยังต้องต่อสู้ต่อ’, Thai Lawyers for Human Rights (October 1, 2022), https://tlhr2014.com/archives/49076.
[10] ‘1 ปี สถานการณ์ฉุกเฉินรับมือโควิด: ผลกระทบต่อเสรีภาพในการชุมนุม’, Thai Lawyers for Human Rights (March 26, 2021), https://tlhr2014.com/archives/27551.
[11] ‘เปิดคำพิพากษายกฟ้องคดีคาร์ม็อบลพบุรี ชี้การชุมนุมยังไม่ถึงกับแออัดเต็มพื้นที่-ประกาศ ผบ.ทสส. ไม่มีผลใช้บังคับ ออกเกินอำนาจ’, Thai Lawyers for Human Rights (May 9, 2022), https://tlhr2014.com/archives/43412.
[12] See ICJ Briefing on the Emergency Decree in Response to the COVID-19
[13] Ibid.
[14] Thailand’s Notification under Article 4(3), C.N.194.2020. TREATIES-IV.4 (Depositary Notification), 4 June 2020, https://treaties.un.org/doc/Publication/CN/2020/CN.194.2020-Eng.pdf.
[15] See ICJ Briefing on the Emergency Decree in Response to the COVID-19
[16] ‘แม้ยกเลิกสถานการณ์ฉุกเฉิน แต่คดี พ.ร.ก.ฉุกเฉินฯ จากการชุมนุม กว่า 574 คดี ยังต้องต่อสู้ต่อ’, Thai Lawyers for Human Rights (October 1, 2022), https://tlhr2014.com/archives/49076.
