On 15 July 2005, the Thai Cabinet approved the adoption of the Emergency Decree on Public Administration in a State of Emergency, B.E. 2548 (2005) (hereinafter the "State of Emergency Decree"). Following the King's signature, the State of Emergency Decree was gazetted on 16 July 2005 and came into force on 17 July 2005.
I have long been concerned about the misleading statements made about this legislation by the media and NGOs. I actually started this post in April 2006 and my original attempt fizzled out after 2000 words so I have reduced the size and will limit this post to the detention and immunity provisions.
Detention Provisions
The Nation on 16 July 2005:
Abdulrahman Abdulsamat, chairman of the Narathiwat Islamic Committee, recommended the government reconsider the price of a backlash that may accompany the decree.
“My biggest concern is that this will lead to another Tak Bai bloodshed. Unless the state can come up with convincing evidence to detain somebody, there could be grave consequences in detaining suspects without warrants, “ he said.
US State Department:
The emergency decree covering the southern provinces grants authorities the power to detain suspects for up to 30 days without charge, and make searches and arrests without warrants.Also, UPI, Human Rights First (PDF), AFP, Kavi in The Nation, and Time.
The relevant provisions are Section 11(1) and Section 12:
Section 11(1):
to issue a Notification that a competent official shall have the power of arrest and detention over persons suspected of having a role in causing the emergency situation, or being an instigator, a propagator, a supporter of such act or concealing relevant information relating to the act which caused the emergency situation, provided that this should be done to the extent that is necessary to prevent such person from committing an act or participating in the commission of any act which may cause a serious situation or to foster cooperation in the termination of the serious situation;
BP: Such notification has been issued.
Section 12:
In arresting and taking suspected persons into custody under section 11(1), the competent official shall apply for leave of a court of competent jurisdiction or the Criminal Court. Upon obtaining leave of the court, the competent official shall be empowered to arrest and take the suspected persons into custody for a period not exceeding seven days. The suspected persons shall be taken into custody at a designated place which is not a police station, detention centre, penal institution or prisons and shall not be treated as a convict. In case where it is necessary to continue the detention in order to remedy the emergency situation, the competent official shall apply for the leave of the court to extend such detention period by seven days at a time, provided that the total period shall not exceed thirty days. Upon the expiration of such period, if the detention is still required, the competent official shall proceed under the Criminal Procedure Code.
In proceeding under paragraph one, the competent officials shall file a report on the arrest and detention of such suspected persons for submission to the court issuing the order under paragraph one. A copy of such report shall be deposited at the office of the competent official so that relatives of the suspected persons may access such reports for the entire duration of such detention.
The provisions on the procedures governing the issue of a warrant under the Criminal Procedure Code shall apply mutatis mutandis to the application for leave of the Court under paragraph one.
BP: A "warrant" is not required but the authorities must seek court permission before arresting someone and also to extend the period of detention beyond 7 days (and every 7 days up to a maximum of 30 days). As I have already said, the authorities must also follow the same procedures and use the same standard of proof ('reasonable cause') for obtaining court permission as they would for obtaining a warrant.
It is highly misleading to state that no warrant is required when court permission is still required before the arrest/detaining of the person and the same provisions in the issuing of warrants must be followed.
By way of comparison on the 30-day time period, the United Kingdom allows for the detention of suspects for up to 28 days (Terrorism Act 2006, Section 23).
Immunity Provision
I'll look at the provision first. Section 17:
A competent official and a person having identical powers and duties as a competent official under this Emergency Decree shall not be subject to civil, criminal or disciplinary liabilities arising from the performance of functions for the termination or prevention of an illegal act if such act was performed in good faith, non-discriminatory, and was not unreasonable in the circumstances or exceed the extent of necessity, but this does not preclude the right of a victim to seek compensation from a government agency under the law on liability for wrongful act of officials.
I think Chang Noi's non-legal translation better reflects how it is read in English:
Section 17. An official or other person appointed to exercise the decree is not subject to civil, criminal, or disciplinary liability arising from the conduct of duty, provided that actions are honest, not discriminatory, and not in excess of what is necessary and appropriate to the situation. People suffering damages can still apply for compensation from government.
BP: Government official can rely on this provision as a defence. As long as:
1. Actions are in good faith,It is part 3 which is key as 1 and 2 are airy fairy fluff. I should note there is some uncertainty on whether it is "and" or "or" in 3. Normally, it it would be as "or", but the meaning of the sentence is "and" which is why I think Chang Noi's translation is correct. They go to together.
2. Actions are non-discriminatory, and
3. Was not beyond what was reasonable in the circumstances and does not exceed what was necessary in the circumstances
"Was not beyond what was reasonable in the circumstances" is from the Thai "ไม่เกินสมควรแก่เหตุ". This is more qualitative ( e.g., what is done). For example, a motorcycle in the Deep South is speeding towards a checkpoint. It passes a sign requesting that it slowdown. The officer at the checkpoint yells for the motorcycle to stop, it doesn't and the officer notices the pillion passenger grab what appears to be a shiny object. The officer fearing for his life shoots the pillion passenger. This is within "not beyond what was reasonable in the circumstances". An example of actions not being reasonable in the circumstances would be if it was midnight and the officer' flashlight wasn't working. He hears a noise, but is unsure what it is so he grabs a grenade and throws it in the direction of the noise. The grenade kills 2 people.
"Does not exceed what was necessary in the circumstances" is from the Thai "เกินกว่ากรณีจำเป็น". This is quantitative ( e.g., the extent to which it is done). Using the example above, the officer instead of pulling out a gun pulls out an automatic rocket launcher and fires off 4 rockets which kills the pillion passenger, the motorcycle driver, as well as driver and all passengers of the pick-up truck 50 metres behind the motorcycle driver. This would exceed what was necessary in the circumstances. In essence, it is a proportionality test.
That the response must be reasonable and proportionate is exactly the same as the English common law test for self-defence - see self-defence theory and the application of self-defence of others and justifiable homicide. Keep the above in mind when you read some the commentary/news reports below. It has long been my view that the provision in the State of Emergency legislation was really to stop civil action law suits being brought against individual police and military officers and instead requiring they be brought against the state which the provision specifically allows. It add provides some legal certainty to officers and something they can rely upon as long as they meet the requirements.
AP on 26 August 2005:
A former prime minister here who heads a commission to resolve the southern problem, Anand Panyarachun, has described the decree as a "license to kill."
...
Among its provisions, the decree... provides legal immunity to enforcement officials who kill suspects while conscientiously performing their duty.
BP: It is not a license to kill any more than self-defence is a license to kill. It requires more than conscientiously performing their duty.
Human Rights Watch:
5. Similarly, Section 17 provides unnecessarily expanded immunity from criminal, civil, and disciplinary liability for officials acting under the decree. A complainant now has the burden to prove that the officials in question did not act in “good faith, non-discriminatory, and an unreasonable” manner.
BP: The provision does not put the burden of proof onto the complainant. If a person is killed, wouldn't the officer raise this defence? It is a defence.
DPA on 14 March 2005:
The decree... grants them immunity for any violence committed in the name of restoring security.
BP: Need I explain that it doesn't grant immunity for "any violence" whether committed in the name of security or not.
Time:
The decree also grants immunity to police and soldiers who may have committed abuses—a provision that the U.N. Human Rights Committee has condemned.
BP: I suppose this depends on how you define abuses.
Zachary Abuza:
2005 Emergency Decree—that give the security forces blanket immunity from prosecution and give citizens absolutely no recourse to seek redress for abuses of power,
BP: Aside from the fact that they can still sue the government - there is a lower standard of proof for civil cases so even any acts which are legitimately in self-defence the government might make some token payment (the same happens in traffic accidents in Thailand, particularly where a motorcyclist is killed by a car, even where the driver of the car is not at fault. Often, the driver will pay "compensation" to the dead motorcyclists next of kin to make the matter go away - insurance doesn't pay out either) .
Asia Times:
Significantly, Sonthi failed to lift the blanket immunity from prosecution Thai security forces have operated under since Thaksin enacted an emergency decree in 2005, meaning aggrieved Thai Muslims still have no legal recourse against security forces that abuse their power.
HRW:
This perception has been reinforced by the government’s decision to maintain the draconian Emergency Decree of 2005, which gives the security forces almost blanket immunity for criminal misconduct and human rights violations in the southern border provinceBP: It doesn't allow criminal misconduct.
AHRC:
The decree was introduced by the former prime minister mid-2005 as part of a heavy-handed approach to the violence in that part of the country, and it grants the army and police even greater powers than under martial law. They cannot be prosecuted for any actions taken under it.
BP: It could mean they cannot be prosecuted for any actions which are not beyond Section 17 but this is not any actions whatsover which I think many would assume they meant.
Special Rapporteur on extrajudicial, summary or arbitrary executions of the United Nations Human Rights Council, Philip Alston:
Thailand's Emergency Decree provides that soldiers and police officers may not be prosecuted or disciplined even for otherwise illegal killings so long as they are acting reasonably and in good faith. Under human rights law the use of lethal force is prohibited unless strictly necessary to protect life, regardless of an officer's good faith or reasonableness. "The emergency decree makes it possible for soldiers and police officers get away with murder," said Alston. "Thailand must abide by its commitment to follow human rights law."
BP: Did he even bother to read what the provision says? Did he miss the part about "necessary" or "necessity" (depending on how you want to translate it)? Reasonableness is part of self-defence law anyway.
The State of Emergency Decree doesn't allow soldiers or police to get away with murder. Yes, killings by the authorities are not investigated, but this is the situation throughout Thailand. The Decree does not apply outside of Yala, Pattani, or Narathiwat. There is no blanket immunity and immunity does not apply for acts which were not reasonable in the circumstances or are beyond what was necessary.
Thanks to Tom and Patiwat for some earlier comments. Any comments they provided should not be viewed as if they agree with my conclusions
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