The government of Thailand claims to be complying with the
International Covenant on Civil and Political Rights in its
application of the Emergency Decree on Public Administration in
Emergency Situations, B.E. 2548 (2005) in response to the recent
protests in Bangkok, which is today, 6 July 2010, coming up for
renewal.
The Asian Human Rights Commission has in a previous statement pointed
out that in fact the government’s rationale for the imposition of the
state of emergency does not meet the minimum requirement of the
Covenant that the life of the entire nation be in danger, and that
certain specific terms of the Emergency Decree are clearly—and in the
opinion of the committee that monitors compliance with the treaty—in
breach of its provisions (AHRC-STM-139-2010
<http://www.ahrchk.net/statements/mainfile.php/2010statements/2672/>
).
There is yet another aspect of the current imposition of the
Emergency Decree that is in violation of the Covenant, as explained by
the United Nations Human Rights Committee:
"A fundamental requirement for any measures derogating from the
Covenant, as set forth in article 4, paragraph 1, is that such
measures are limited to the extent strictly required by the exigencies
of the situation. This requirement relates to the duration,
geographical coverage and material scope of the state of emergency and
any measures of derogation resorted to because of the emergency"
(General Comment No. 29, CCPR/C/21/Rev.1/Add.11, 31 August 2001, para.
4).
Any departures from the Covenant under a state of emergency must not
only be justified by exceptional circumstances but must also be
temporary. Once the immediate threat has passed that led to the
emergency being imposed, it must be lifted. As the UN Special
Rapporteur on the independence of judges and lawyers explained in his
2007 annual report to the Human Rights Council,
"The principle of temporality implies a close connection between the
duration of the state of emergency and the circumstance that gave rise
to its introduction. Through violation of the principle of temporality
states of emergency become permanent in nature, as a result of which
the executive holds extraordinary powers" (A/HRC/4/25, 18 January
2007, para. 43).
According to the government of Thailand, conditions in the country
have now largely returned to normal. There are no more protests or
violence on the streets of the sort that led to the imposition of the
Emergency Decree across 24 provinces in the centre, north and
northeast of the country. The Ministry of Foreign Affairs in a
statement on its website of 29 June 2010 describes the "Government and
Parliament discharging their normal functions" and life as going
on as usual in areas under the state of emergency. The only
justification that it offers for the continued application of the
decree is “to prevent possible violent or unlawful activities”.
The justification for continued imposition of a state of emergency to
prevent possible further future violence is under international law no
justification at all. On the contrary, it is a precipitant of
precisely that situation about which the Special Rapporteur warns, in
which the principle of temporality is violated to allow for the state
of emergency to extend beyond the exigencies of the situation.
Implicit in the preventive pretext is the notion of an indefinite
state of emergency. Since the prospect of violence and unlawful
activity exists in any society—and especially in one where the
legitimacy of electoral processes has collapsed—practically any
government can at practically any time conceivably use this excuse to
curtail basic human rights, including those under the Covenant.
If the government of Thailand today opts to renew the Emergency
Decree then it will not only be doing a grave disservice to the people
and institutions of Thailand, but it will also be stepping clearly
beyond the limits of the principle of temporality and into further
breach of international law. This is a step that once taken will not
be easily reversed. It is a step that it must not take.
The Asian Human Rights Commission therefore once again unequivocally
calls on the government of Thailand not to renew the Emergency Decree,
to release all persons being held under its provisions, and to comply
fully and in fact—not merely in rhetorical commitment to
principle—with the terms of the International Covenant on Civil and
Political Rights in the handling of all cases of persons accused of
criminal offences in connection with events of the last few months.