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 This Announcement—which came into force on 1 October 2022—effectively repealed the declaration of an emergency situation prompted by the spread of Covid-19 around the country, and at least 47 regulations, announcements and/or orders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.
Nov 25, 2021 | Internet Freedoms, Opinion Articles
By Mu Sochua
Over the past two years, Thailand has not just suffered repeated Covid-19 waves, but it has also faced growing discontent and criticism. Widespread protests have taken place calling for major reform of the political establishment.
Many aspects of these protests have been innovative, not only because they challenged usually taboo subjects such as monarchy reform and the army in politics. The protests took place both on the streets as well as the internet.
The internet has become an increasingly important space in Thailand’s pro-democracy movement, with digital-savvy netizens using the web to spread their messages and make their voices heard in the form of videos, memes, popular hashtags, and social media posts.
The authorities’ attempts to quash the protest movement and the control measures — with political cyberspace campaigns, are repressive laws to restrict internet use and have their online access and activities limited and monitored by state surveillance.
In its 2021 Freedom on the Net report, which analyses internet freedoms globally, Washington DC-based Freedom House, a non-profit group on democracy rated Thailand “not free”, giving it a grade of just 36 out of 100. “The internet is severely restricted in Thailand,” the report said.
Among the weapons in the government’s arsenal to control the internet are the Cybersecurity Act 2019, which allows the government to monitor and access digital data it deems “cyber threats” to the country, and the Computer Crime Act (CCA)2017.
The CCA, first introduced in 2007 and amended in 2017, is draconian in nature. It grants broad powers to the government to conduct surveillance, censor free speech and opinion, and target activists and political opponents. It allows the government to prosecute those it deems to be spreading “false” or “distorted information”.
The act has repeatedly been used to arrest activists in order to restrict freedom of expression. At the height of the pro-democracy protests in 2020, authorities targeted protesters and warned them against using online platforms to mobilise people to join the demonstrations. According to the Thai Lawyers for Human Rights (TLHR), between July 2020 and September 2021, 90 people in 103 cases were charged under the CCA.
The government did not stop there. In August, the Ministry of Digital Economy and Society introduced a new ministerial notification to update rules on retaining computer traffic data of service providers, pursuant to the CCA. This new notification adds requirements for a range of digital service providers, including internet providers, social media platforms, and messaging applications, to collect data to identify individuals and hand it over to authorities upon request. This data is admissible in court. Even public venues providing internet access are required to install surveillance cameras to aid authorities in identifying internet users.
Ultimately, these new rules are here to assist authorities in tracking down individuals whose online activities they deem to have violated the CCA. Given how the authorities have used the broadly worded CCA against those calling for change in Thailand, there are legitimate concerns the new ministerial notification was made not to fight cybercrime, but instead to grant authorities added arbitrary powers to crack down on free speech in the digital sphere.
The new ministerial notification took into account the increased popularity of social media and messaging platforms such as Facebook, Line, Telegram, YouTube, and Instagram, among others, and has now added them as the subject of increased state surveillance, outside of any accountability for the government. Since these surveillance activities are justified by the authorities in the interests of “national security”, users are not able to invoke their right to privacy under the Personal Data Protection Act 2021.
Despite the government’s efforts to control cyberspace, Thai youths and various pro-democracy groups are still displaying extreme courage, continuing their street protests and using social media to express opinions, raise awareness, and mobilise their campaigns. Yet, for them and all people in Thailand, keeping themselves safe from the government’s prying eyes is becoming increasingly challenging.
Internet service providers and parliamentarians should be at the forefront of fighting back against digital dictatorship, and urging the government to repeal laws and regulations that curtail internet freedom.
Mu Sochua is a board member of Asean Parliamentarians for Human Rights (APHR) and a former Cambodian member of parliament.
This article first appeared in the Bangkok Post
Sep 1, 2021 | DFF, Statements
Please see here for a Thai version of this letter
1 September 2021
Prime Minister Prayut Chan-o-cha
Royal Thai Government
Government House
1 Phitsanulok Road
Dusit, Bangkok
Thailand
Re: Concerns regarding the right to peaceful assembly in Thailand
Dear Prime Minister Prayut Chan-o-cha,
We, the 13 undersigned organizations, write to express our concern regarding violence and the excessive use of force by police at recent protests in Bangkok. We are troubled by the disproportionate response of riot police to provocations by protesters. We are also concerned by the arbitrary detention of protest leaders who have recently faced new criminal charges and have been denied bail and detained. Thailand needs to do more to protect protesters from violence and ensure that the public can safely exercise the right to peaceful assembly during the COVID-19 pandemic.
In recent weeks, both riot police and protesters have contributed to a significant escalation in violence at political protests in Bangkok. In August alone, police have forcibly dispersed at least ten demonstrations using rubber bullets, water cannons, and tear gas. At several protests, demonstrators threw rocks and Molotov cocktails, launched fireworks, and used slingshots to shoot nuts and bolts at riot police. Many of the clashes have occurred near Din Daeng intersection, which is close to the headquarters of the 1st Infantry Division of the Royal Guard. Youth participation in these protests has been high, with a large proportion of protesters under the age of 18.
Crowd control measures and other actions taken by law enforcement officers have frequently violated the human rights of protesters and international standards on the policing of protests. Police officers have repeatedly fired rubber bullets at protesters in an indiscriminate fashion. Footage from a recent protest shows riot police firing rubber bullets from a highway overpass at a distance too great to ensure the targeting of violent individuals in a manner consistent with international standards. In other videos, police officers appear to shoot rubber bullets at individuals passing on motorcycles, including at point blank range. Journalists, including those who visibly identified themselves as press, have also reported being hit with rubber bullets at protests.
Police have reportedly fired tear gas canisters directly at protesters. On 13 August 2021, a protester, Thanat Thanakitamnuay, was hit in the face by an object believed to be a tear gas canister fired by police at Din Daeng intersection and has reportedly lost sight in his right eye.
The recent use of firearms by unknown assailants at a protest raises further grave concerns. On 18 August 2021, three teenage protesters were shot with live ammunition in front of the Din Daeng Police Station. One of the victims—a 15-year-old boy—was hit by a bullet in the neck and remains in intensive care. According to a hospital report he is suffering from paralysis of both arms and legs and is not responding to stimulus. The other two injured protesters were reportedly 14 and 16 years old. The police have denied using live ammunition during the protest and said they are investigating the shooting.
In addition to cracking down on street protests, Thai authorities have continued their harassment of protest leaders and participants through legal processes. Since July 2020, more than 700 individuals, including at least 130 children, have been investigated in connection to their protest activities. Between 7 and 9 August 2021, at least 32 protest leaders and participants were arrested and charged with a variety of offences. Ten were arbitrarily denied bail and subjected to pre-trial detention.
Two of the protesters who were arrested, Arnon Nampa and Jatupat Boonpattararaksa, are Gwangju Prize for Human Rights laureates. Arnon was charged, inter alia, with lèse-majesté (defaming the monarchy) in relation to a speech he gave on monarchy reform at a protest in Bangkok on 3 August 2021. Jatupat was charged with, inter alia, violating a COVID-19 emergency regulation after he organized a protest in front of Thung Song Hong Police Station on the same day. Seven other protest leaders—Parit Chiwarak, Nutchanon Pairoj, Sirichai Natueng, Phromsorn Weerathamjaree, Panupong Chadnok, Thatchapong Kaedam, and Panadda Sirimatkul—were all charged, inter alia, with violating a COVID-19 emergency regulation as a result of their participation in a peaceful protest in front of the Border Patrol Police Region 1 Headquarters on 2 August 2021. Sam Samart, a 19-year-old, was arrested on 7 August and charged, inter alia, with violating a COVID-19 emergency regulation in relation to the protest in front of the Border Patrol Police Region 1 Headquarters on 2 August 2021.
Many of these activists have previously been detained, prosecuted, and imprisoned for their protest activities. In 2016, Jatupat was sentenced to two-and-a-half years’ imprisonment after he was convicted of lèse-majesté. Earlier this year, Parit was detained for 91 days on similar charges. Arnon, Panupong, and Phromsorn were also arrested earlier this year and were released from pre-trial detention in June.
The court determined that the activities of key protest leaders including Arnon, Parit, and Jatupat violated the bail conditions connected to their previous lèse-majesté cases, which prohibited them from participating in political protests or further defaming the monarchy. They could face years of pretrial detention.
At least eight of the detained protesters have reportedly tested positive for COVID-19 while jailed. On 26 August 2021, the Court of Appeal granted bail to Sirichai Natueng, Panadda Sirimasakul, and Sam Samart, and they were released from custody. Even though prisons are overwhelmed with COVID-19 cases, the other seven protest leaders remain in pre-trial detention, each having been denied bail at least twice.
Thailand’s obligations under international law and relevant standards
Article 21 of the International Covenant on Civil and Political Rights (ICCPR), which Thailand ratified in 1996, guarantees the right to peaceful assembly. While some restrictions on assembly are permissible under international law, any restriction on this right must be ‘imposed in conformity with the law and . . . necessary in a democratic society.’ ICCPR Article 21 enumerates a list of the permissible justifications for a restriction on assembly: to protect national security, public safety, public order, public health, public morals, or the rights and freedoms of others. No other governmental interest can justify a restriction on peaceful assembly.
The Convention on the Rights of the Child, which Thailand ratified in 1992, protects children’s right to freedom of peaceful assembly.
In its General Comment No. 37, the UN Human Rights Committee elaborated on the importance of the right to peaceful assembly:
Together with other related rights, [the right to freedom of peaceful assembly] constitutes the very foundation of a system of participatory governance based on democracy, human rights, the rule of law and pluralism. Peaceful assemblies can play a critical role in allowing participants to advance ideas and aspirational goals in the public domain and to establish the extent of support for or opposition to those ideas and goals. Where they are used to air grievances, peaceful assemblies may create opportunities for the inclusive, participatory and peaceful resolution of differences.
The right to peaceful assembly is foundational to many other rights and, in particular, helps to ensure economic, social, and cultural rights are upheld. Moreover, protest is often one of the most effective tools available for marginalized individuals and groups to successfully advocate for change.
For these reasons, international law is especially protective of protests with a political nature. According to the Human Rights Committee, ‘assemblies with a political message should enjoy a heightened level of accommodation and protection.’ As such, the creation of perimeters around government buildings or official locations that demarcate where assemblies may not take place ‘should generally be avoided, inter alia, because these are public spaces. Any restrictions on assemblies in and around such places must be specifically justified and narrowly circumscribed.’
The threat to public health posed by the COVID-19 pandemic may justify narrow restrictions on the right to freedom of peaceful assembly, but such restrictions must meet the requirements of legality, necessity, and proportionality under international human rights law. In assessing whether a measure is necessary and proportionate to a legitimate aim, consideration should be given to whether the measure in question is the least intrusive means of achieving that aim. The Office of the UN High Commissioner for Human Rights has issued guidance on issues affecting civic space in the context of the COVID-19 pandemic, noting that:
States should ensure that the right to hold assemblies and protests can be realized, and only limit the exercise of that right as strictly required to protect public health. Accordingly, States are encouraged to consider how protests may be held consistent with public health needs, for example by incorporating physical distancing.
In April 2020, UN Special Rapporteurs and Working Groups warned against the excessive use of force to enforce COVID-19-related restrictions on protesters, stating, ‘emergency measures can be a more direct threat to their life, livelihood, and dignity than even the virus itself.’ Moreover, aggressive police action against protesters may defeat the purpose of emergency measures. Arrest, detention, the use of force, and dispersal of protests can increase the risk of virus transmission for protesters and law enforcement officials alike.
States have an obligation to protect journalists, monitors, and members of the public—as well as public and private property—from harm. As such, state actors must take steps to ensure that protesters can exercise their rights safely, while exerting the ‘minimum force necessary’ to reduce the likelihood of injuries and property damage.
In a joint statement, the UN Special Rapporteurs on the freedoms of association and expression declared that there is ‘no such thing in law as a violent protest’. Rather, there are only violent protesters who should be dealt with individually. According to the Special Rapporteurs and Human Rights Committee, the right to peaceful assembly is an individual right, not a collective right, and must be treated as such. Any isolated act of violence by some participants must not be attributed to other participants in the assembly. In addition, so long as organizers take reasonable efforts to encourage peaceful conduct during an assembly, they may not be held responsible for the violent actions of others.
State authorities may only disperse assemblies when ‘strictly unavoidable,’ such as when there is clear evidence of an imminent threat of serious violence that cannot be dealt with by targeted arrests or other less drastic actions. Before dispersing a crowd, law enforcement officers must take all reasonable measures to enable the assembly by providing a safe environment. Even if some protesters act violently, all those involved retain all their rights under the ICCPR, including, of course, the right to life and protection against arbitrary detention.
Law enforcement officers should only resort to force in ‘exceptional’ circumstances. Any use of force must only be the minimum amount necessary, targeted at specific individuals, and proportionate to the threat posed. The restrictions on the use of force at assemblies are even more important when police use lethal force, including the use of firearms. When policing an assembly, firearms may only be used when strictly necessary to counter an imminent threat of death or serious injury.
Rubber bullets can also be deadly. The OHCHR Guidance on Less Lethal Weapons in Law Enforcement states that ‘kinetic impact projectiles should generally be used only with the aim of striking the lower abdomen or legs of a violent individual and only with a view to addressing an imminent threat of injury to either a law enforcement official or a member of the public.’ Rubber bullets should not be used as a general tool to disperse protesters, nor should they be fired indiscriminately into a crowd.
Tear gas and other ‘area weapons’ also pose risks to protesters and should only be used in response to widespread violence with the sole purpose of dispersal and as a measure of last resort after giving an audible warning and providing reasonable time for protesters and bystanders to vacate the area. Tear gas cartridges and canisters may not be aimed at individuals or used in confined spaces. Their use on a person who is already restrained amounts to a violation of the prohibition against torture or other cruel, inhuman or degrading treatment under international law.
According to the Human Rights Committee, states should ‘consistently promote a culture of accountability for law enforcement officials during assemblies.’ As such, it is essential that police receive adequate training to facilitate assemblies. Law enforcement officers must understand the legal framework governing assemblies, their obligation to enable peaceful assemblies, and the importance of political assemblies in a rights-respecting society. They should receive training on proper techniques to manage crowds and how to avoid escalation while responding to violence by protesters. Any use of force must be investigated to determine whether the force was necessary and proportionate. States have ‘an obligation to investigate effectively, impartially and in a timely manner any allegation or reasonable suspicion of unlawful use of force or other violations by law enforcement officials … in the context of assemblies’.
In March 2020, the UN High Commissioner for Human Rights urged all states to release ‘every person detained without sufficient legal basis, including political prisoners, and those detained for critical, dissenting views’ in response to the COVID-19 pandemic. By continuing to detain protest leaders despite high infection rates and overcrowding in prisons, the Thai government is unnecessarily putting their lives at grave risk.
Conclusion
In order to fulfill its human rights obligations, the Thai government should not only refrain from suppressing protests but also needs to create a safe and enabling environment for members of the public to exercise their rights to peaceful assembly and freedom of expression in the context of the COVID-19 pandemic.
We call on the Thai government to ensure that law enforcement officials only resort to the use of force against protesters in full compliance with international human rights law and standards. In particular, authorities must not use greater force than necessary to achieve a legitimate objective and must not cause greater harm than the harm they seek to prevent. Any use of force must be proportionate to a legitimate law enforcement objective, such as meeting any threat of violence. We further call on your government to ensure that all law enforcement personnel present at protests have been properly trained in strategies and tactics that comply with international human rights law and standards. Authorities should promptly, effectively, impartially, and independently investigate any violations of domestic law and international standards and ensure that perpetrators are held accountable.
We further call on the Thai government to immediately end its harassment of protest leaders and participants. Individuals detained solely because of their exercise of the right to peaceful assembly, including protest leaders recently denied bail, should be immediately and unconditionally released. No one should be detained merely for exercising a human right, such as the rights to peaceful assembly or freedom of expression.
We urge you to initiate a review of all laws and policies impacting the right to freedom of peaceful assembly in Thailand. Laws and policies that unjustifiably restrict the rights to freedom of peaceful assembly and expression should be amended in line with international law and standards.
Thank you for your attention to the issues and recommendations raised in this letter. We would welcome the opportunity to assist and support the Thai government in meeting its human rights obligations.
Sincerely,
Amnesty International
ARTICLE 19
ASEAN Parliamentarians for Human Rights
Asia Democracy Network
Asian Forum for Human Rights and Development (FORUM-ASIA)
Asian Network for Free Elections (ANFREL)
CIVICUS: World Alliance for Citizen Participation
Civil Rights Defenders
FIDH – International Federation for Human Rights
Fortify Rights
Human Rights Watch
International Commission of Jurists
Manushya Foundation
CC:
Police General Suwat Jangyodsuk,
Commissioner-General of the Royal Thai Police
Rama I Rd, Pathum Wan
Bangkok 10330
Dec 3, 2020 | DFF, Statements
We, the undersigned organizations, condemn the Thai police’s unnecessary and excessive use of force against peaceful protesters marching to the national parliament in Bangkok on November 17, 2020. We are concerned that authorities could employ similar measures when facing protesters who have declared they will march to the Siam Commercial Bank headquarters on November 25.
On November 17, police set out barriers and barbed wire to prevent a peaceful march organized by pro-democracy movements from reaching the parliament. Protesters planned to protest outside the parliament as members of parliament and senators debated seven different proposals for constitutional amendments, including an amendment proposed by the lawyers’ non-governmental organization iLAW (Internet Law Reform Dialogue), which was supported by the People’s Movement and its allies. Police refused to let protesters through the barriers, and when the demonstrators acted to breach those barriers, police crowd control units used water cannons laced with purple dye and an apparent teargas chemical, as well as teargas grenades and pepper spray grenades, to forcibly disperse thousands of demonstrators, including students, some of whom are children. Water cannons were first used at approximately 2:25 pm and police continued their efforts to disperse protesters, with constant use of water cannons, teargas and pepper spray into the evening.
Police also failed to prevent violence between pro-democracy protesters and royalist “yellow shirts” near the Kiak Kai intersection, near the parliament. Initially, riot police separated the two groups. However, video posted on social media later showed police officers informing the royalist protesters that they would withdraw and seconds later they vacated their position between the two groups. During the ensuing skirmishes, both sides were filmed throwing rocks and wielding clubs. Live broadcasts included sounds that appeared to be gunfire.
The Erawan Medical Centre reported that there were at least 55 protesters injured, mostly from inhaling teargas. It also reported that there were six protesters who suffered gunshot wounds. The injured included children: a kindergartener and elementary school students.
Although some pro-democracy protesters engaged in violent conduct in responding to royalist protesters, we emphasize that the overwhelming number of protesters were entirely peaceful. Furthermore, we wish to emphasize that while specific participants of an assembly who engage in violence are subject to a response that is lawful, strictly necessary and proportionate, they also retain all other human rights including the right to life, to security of person and to freedom from torture and other cruel, inhuman or degrading treatment or punishment.
International human rights law, as expressed in the International Covenant on Civil and Political Rights (ICCPR), which Thailand acceded to in 1996, protects the rights to freedom of expression (article 19) and peaceful assembly (article 21). But Thai authorities have routinely enforced censorship and stifled public assemblies, meetings, and discussions about human rights, political reforms, and the monarchy’s role in society.
In General Comment 37, which sets out the content Thailand’s legal obligations in guaranteeing the right of peaceful assembly, the United Nations Human Rights Committee—the body responsible for interpreting and applying the ICCPR—made clear that there is a presumption in favor of considering assemblies to be peaceful. Isolated acts of violence by individuals should not be attributed to others, to the organizers, or to the assembly as such. While the right of peaceful assembly may in certain cases be limited, the onus is for the State to justify any restrictions, which must pass the tests of legality, legitimacy, and necessity and proportionality.
The Committee emphasized that “assemblies with a political message should enjoy a heightened level of accommodation and protection.” The Committee further highlighted the responsibility of governments to actively facilitate the enjoyment of the right to peaceful assembly, including by securing protest locations and protecting protesters “against possible abuse by non-State actors, such as interference or violence by other members of the public, counter-demonstrators and private security providers.” The Committee stressed that governments should, to the extent possible, allow protests within the “sight and sound” of their target audience or symbolic sites.
The Committee also said that law enforcement officials involved in policing assemblies “must respect and ensure the exercise of fundamental rights of organizers and participants.” Authorities should take on the basic approach of seeking to facilitate peaceful assemblies. Pursuant to Thailand’s obligations under articles 6, as interpreted by the Committee in General Comment 36 and Under the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and other international human rights standards, law enforcement may only use force when strictly necessary and to the extent required to achieve a legitimate policing objective.
In General Comment 37, the Committee further noted the indiscriminate effects of less-lethal weapons with wide-area effects, such as teargas and water cannons. Hence, the Committee said that “when such weapons are used, all reasonable efforts should be made to limit risks, such as causing a stampede or harming bystanders.” The 2020 United Nations guidance on less-lethal weapons in law enforcement further states that “water cannons should only be used in situations of serious public disorder where there is a significant likelihood of loss of life, serious injury, or the widespread destruction of property.” In addition, water cannons should only be used after law enforcement personnel have given warning and sought to “identify and isolate any violent individuals separately from the main assembly.” Authorities should also “not target a jet of water at an individual or group of persons at short-range owing to the risk of causing permanent blindness or secondary injuries if persons are propelled energetically by the water jet.” On the use of teargas, international standards provide that it should only be employed when necessary to prevent further physical harm and should not be used to disperse nonviolent demonstrations.
Given that children are participating in these protests, we also note that the Committee on the Rights of the Child emphasized in its comments on draft General Comment 37 that the State “has a positive duty to protect children’s rights and must at all times act with an awareness that children may be present at the assembly, and protect them from any harm that might be occasioned by law enforcement actions as well as harm caused by other participants in the assembly.”
On November 18, the spokesperson for United Nations Secretary-General António Guterres “expressed concern about the [human rights] situation in Thailand … it’s disturbing to see the repeated use of less lethal weapons against peaceful protesters, including water cannons … it’s very important that the government of Thailand refrain from the use of force and ensures the full protection of all people in Thailand who are exercising a fundamental peaceful right to protest.”
We call on the Thai government to respect, protect and fulfill the right of demonstrators to peacefully protest, in line with Thailand’s international obligations under the ICCPR and customary international law. Specifically, Thailand should:
- Permit the People’s Movement march to proceed on November 25 and allow for non-violent protesters, including those who are children, to peacefully protest in front of the Siam Commercial Bank headquarters.
- Protect the rights of protesters, including those who are children, in accordance with the Human Rights Committee’s General Comment No. 37 on the Right of Peaceful Assembly.
- Facilitate the exercise of the right to peacefully assemble and refrain from dispersing assemblies by using weapons, including less-lethal weapons, against protesters in line with the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and UN and other guidance on less-lethal weapons.
- Protect protesters, including those who are children, from violence and interference by non-State actors, while also protecting the rights of counter-demonstrators.
- Take steps to ensure accountability for rights violations associated with the government’s crackdown on the protest movement and to ensure that those whose rights have been violated enjoy the right to an effective remedy, as guaranteed under ICCPR article 2(3).
Signed by:
Amnesty International
Article 19
ASEAN Parliamentarians for Human Rights
Asia Democracy Network
Asian Forum for Human Rights and Development (FORUM-ASIA)
Asian Network for Free Elections (ANFREL)
CIVICUS: World Alliance for Citizen Participation
Civil Rights Defenders
FIDH – International Federation for Human Rights
Fortify Rights
Human Rights Watch
International Commission of Jurists
Manushya Foundation
Dec 3, 2020 | DFF, Statements
JAKARTA – Southeast Asian lawmakers today heavily criticized the Thai government’s decision to introduce a new emergency decree that severely restricts peaceful assembly and expression, and grants the authorities powers to crackdown on all protesters. They called for it to be immediately rescinded, and for the authorities to immediately and unconditionally release all detained peaceful pro-democracy activists and protesters.
“What’s happening now in Thailand is an outright blatant abuse of emergency powers to crack down on fundamental freedoms and shield those in power from any form of legitimate criticisms,” said Charles Santiago, Malaysian MP and Chair of ASEAN Parliamentarians for Human Rights (APHR).
“The thousands that have taken to the streets in Bangkok, and nationwide, have done so peacefully, and are fully entitled to raise concerns about the current state of democracy in Thailand,” he added.
The emergency order, which came into force in the early hours of 15 October, is a major threat to human rights in the country. It bans gatherings of five persons or more, and broadly prohibits the publication of news and information “which may instigate fear amongst the people” or that “affect national security or peace and order”. Under the decree the authorities could also arrest and detain people without charge for up to 30 days on grounds as vague as “supporting” or “concealing information” about the protests. During the announcement of the measure, authorities cited the need to “maintain peace and order” and that protesters had “instigated chaos and public unrest”.
Since its imposition, dozens of protesters, including three pro-democracy leaders, were reportedly arrested for their participation in the 14 October rally, which was part of a series of pro-democracy rallies held nationwide in recent months. These have largely been youth-led, and called for major changes to Thailand’s political order, including the dissolution of Parliament, the enactment of a new Constitution and reforms to the monarchy. Since the protest movement began, scores of individuals have faced illegal assembly charges, including those under an earlier COVID-19 emergency decree that authorities have routinely extended, despite the number of confirmed coronavirus cases being minimal nationwide.
Authorities must release the name of all those who have been arrested and ensure that they are given access to lawyers, their families and medical assistance if injured, APHR said.
“We call on our fellow parliamentarians in Thailand to immediately exercise their oversight powers, by providing prompt and independent review of the necessity for the use of emergency powers and ensuring that people’s fundamental rights are protected,” added Santiago.
