The New (Ab)normal: Covid-19 State of Emergency proves restrictive for civic freedoms

Declared 2 years ago to combat the spread of Covid-19, Thailand’s State of Emergency has resulted in diminished freedom of expression and assembly.  It has also been used as grounds for cracking down on pro-democracy protests and prosecuting activists.

A protester at a protest on 28 March 2022 holding a sign saying "Will you keep extending the Emergency Decree until your father dies?"

On 25 March 2020, in the early days of the Covid-19 pandemic, the Thai government declared a State of Emergency to combat the spread of the virus, closing national borders and ‘high-risk venues,’ banning large gatherings, and imposing a curfew. Those violating decree measures faced punishments of up to 2 years in prison, a fine of up to 40,000 baht, or both.

Under the terms of the 2005 Emergency Decree, Prime Minister Gen Prayut Chan-o-cha, in his role as head of the ad hoc Centre for Covid-19 Situation Administration (CCSA), has the power to determine how the government managed the pandemic, a responsibility that otherwise would have resided with other ministers, such as the Minister of Public Health. Gen Prayut was also given the authority to extend the State of Emergency, with the approval of his cabinet, after the initial 3-month period had elapsed.

The government has done just that - repeatedly extending the State of Emergency every 3 months, leaving the country under emergency rule for the past 2 years.

Questions have been raised about whether decree orders are being used to control Covid-19 outbreaks or to restrict public freedom of expression and assembly. Thailand continues to experience outbreaks of Covid-19, while the number of people charged with violating the decree by participating in pro-democracy protests continues to rise.

Combating disease or controlling dissent?

For activist Yingcheep Atchanont, manager of the legal watchdog NGO iLaw, gathering bans issued under the decree have not been used to control the spread of the virus, but rather to control protest. He notes that anti-government protesters are generally the only people getting charged for violations of the Decree. He also says that monarchy reform protesters have been prosecuted under the Decree for actions not prohibited by the text of the law.

On 10 December 2021, a group of activists gathered at the United Nations headquarters on Ratchadamnoen Avenue to submit a complaint about the prosecution of pro-democracy protesters using the royal defamation law, the violent dispersal of protests, and other human rights violations committed by the Thai government. Despite the fact that gathering was made up of around 10 people meeting in Bangkok, then classified as a ‘Blue’ province open for tourism, they were later charged with violating the decree

The decree has also been used as a pretext for protest dispersal. Yingcheep notes that police tend to arbitrarily order protesters to disperse without actually seeing whether a demonstration poses risks for the spread of Covid-19. Instead, they have used alleged Decree violations as grounds for deploying weapons against protesters.

“In many instances, protesters have been dispersed, even though they have not broken any law. The police have no legal basis for ending the demonstrations. Instead they claim that protesters are violating the Emergency Decree so they have the power to disperse them. Without the Emergency Decree, they couldn’t shoot,” he said.

According to Poonsuk Poonsukcharoen, a lawyer with Thai Lawyers for Human Rights (TLHR), the Decree has been extensively used against pro-democracy protesters. TLHR reports that  1,447 people participating in public acts of political expression have been charged with violation of the Decree in 629 cases. 24 of these were charged for violating the Severe State of Emergency declared in October 2020.

In contrast, pro-establishment marchers have not been charged with Decree violations and the charges they do receive are generally minor offences punishable with fines. Poonsuk added that this was actually good practice and said she hopes that pro-democracy protesters would eventually be treated the same way.

According to Poonsuk, although the Emergency Decree bans gatherings that risk spreading Covid-19, there has never been a report of Covid-19 clusters resulting from a protest. Most clusters have arisen in closed, indoor spaces like entertainment establishments.

Yingcheep Atchanont (back row, third from left) and Patsaravalee Tanakitvibulpon (front row, first from right) reporting to the police to hear their charges resulting from a protest on 24 June 2021

Activist Patsaravalee Tanakitvibulpon, who is currently facing 12 counts of Emergency Decree violations, notes that public prosecutors often claim that protesters cause trouble for the public by closing roads and use the increasing number of Covid-19 cases as ground for indictment.

“In many decree violation cases, it’s clear that the Covid situation was not so bad, particularly when compared to right now. Back then the number of new cases  was around 10 per day … it wasn’t really a severe crisis like it is now.  But the Emergency Decree was being enforced, possibly inappropriately.  It looks like they were more intent upon using it to attack the demonstrators and restrict their freedoms,” Patsaravalee said.

Patsaravalee is prepared to fight her case but acknowledges that the process drains her energy and takes up her time. She spends up to 4 hours traveling to court appointments.  Time is also lost waiting and preparing testimony.

Decree orders have also been issued in a bid to control online media. The 27th order, issued in mid-July 2021, prohibited the spread of information or news that could cause public fear or misunderstandings, posing a threat to national security, public order, or the “good morals” of the people. Those found guilty of spreading such information faced punishments of up to 2 years in prison, a fine of up to 40,000 baht, or both.

On 30 July 2021, the government issued yet another regulation banning the distribution of information likely to cause public fear or misunderstandings that could affect national security, peace and order, or public morals. The regulation gave Thailand’s National Broadcasting and Telecommunications Commission (NBTC) the authority to order internet service providers to suspend service to IP addresses issuing the information. 

The regulations gave rise to concerns that the government was poised to increase media censorship. 12 media agencies and civil society groups, including Prachatai, then filed a complaint with the Civil Court to ask that the new laws be repealed. The court later ordered that the regulation be suspended on the grounds that the ban was not limited to misrepresentation and amounted to a deprivation of people’s constitutional rights. The Prime Minister withdrew the regulation several days after the court’s ruling. 

Representatives of media agencies and civil society groups speaking to reporters before going to the Civil Court on 2 August 2021. One person is holding a sign saying "The truth is not scary."

When a Severe State of Emergency was declared in Bangkok in October 2020, the Thai authorities threatened to suspend four online media outlets: Voice TV, Prachatai, The Reporters, and The Standard, as well as the Facebook page of the student activist group Free Youth, for their coverage of the pro-democracy protests. The suspension never took place.

In September 2021, two citizen journalists, Nattapong Malee and Panida (last name withheld), were arrested while covering the protests at Din Daeng and charged with violating curfew and the Emergency Decree. Pol Col Kritsana Phattanacharoen, deputy police spokesperson, said during a press briefing the day after their arrest that YouTubers and freelance reporters were not allowed to cover the protests. He added that if journalists could not confirm their affiliation, officers would remove them from the protest site.

Grounds for impunity

The Decree also protects state officials from lawsuits that might arise from misconduct. It stipulates that orders issued under the Decree are not subjected to laws on administrative procedures, denying the Administrative Court jurisdiction over any issues that might come up.

Yingcheep speculates that without this provision, complaints would be piling up in court from people whose lives are affected by the Decree and some of these plaintiffs would have won their cases.  Instead, those wishing to file a complaint against the government must go to the Civil Court which, according to Yingcheep, takes longer and costs more. The process is also more complicated, leaving people less likely to try.

Athapol Buapat, Chumaporn Taengkliang, and Yingcheep Atchanont filed a complaint with the Civil Court on 5 October 2021 requesting the repeal of the gathering ban (Photo by Chana La)

Several complaints have been filed by activist groups hoping to repeal of the ban on gatherings, but little progress has been made, with the exception of one case. In July 2020, the activist People Go Network successfully filed a complaint with the Civil Court to revoke the State of Emergency extension and its first regulation, which bans public gatherings. However, in August 2020, the court dismissed the case after another order allowed gatherings. Public gatherings were subsequently banned again.

Acting under the Emergency Decree, officials are not liable to civil, criminal, or disciplinary charges arising from the performance of their duties. If they do their jobs incorrectly, such as failing to properly notify detainees of the charges they face, they are protected from any complaints.

Yingcheep, who is facing 10 counts of violating the Emergency Decree for speaking at protests, said that when charged, the police failed to inform him of exactly why he was being charged, as well as how his participation in the protests risked spreading Covid-19 or caused public disprder – a failure which he said amounts to a wrongful investigation.

Crowd control police shooting rubber bullets at protesters during crackdown on a protest on 28 September 2021 (Photo by Ginger Cat)

The iLaw manager said that in normal circumstances, this would result in the case being immediately dismissed and the arresting police officer being held liable for a misconduct lawsuit. The Emergency Decree does not allow for this, however.  Instead, it allows state officials to act with impunity, and also protect them when they use violence to disperse protests, in a way that Yingcheep speculates would otherwise also have been liable for legal action. 

The new (ab)normal

Yingcheep and Poonsuk both feel that the time has come for the government to find other ways to control Covid-19 outbreaks, since the Emergency Decree was designed for national security crises and wars as opposed to disease control.

Poonsuk said that the government’s plan to treat Covid-19 as endemic may mean that it is coming to see the virus as less of a threat, and that public assemblies can in the future be regulated by existing disease prevention measures. The Emergency Decree, she feels, is not the right tool for fighting the virus and should be withdrawn.

 “To my mind, using an Emergency Decree as a tool for disease control is not really on point. We already have the Communicable Diseases Act. Two years of the emergency decree is enough already. If our earlier laws are not comprehensive, the state has the opportunity, and the necessary majority voice, to amend the law in line with international standards so that it can be correctly imposed.

“The Emergency Decree was not designed for disease control. It was designed for handling security issues: we can clearly see that it has been used as a tool to restrain people from exercising freedom of political expression,” said Poonsuk.

During a protest on 29 September 2021, the Nang Loeng Intersection was blocked with razor wire, and water cannon trucks were deployed against the protesters (Photo by Ginger Cat)

There are also other positive signs. Of the 629 cases reported by TLHR, the public prosecutor has decided to drop 8 cases and 7 others have been dismissed by the courts. Most were dropped on the grounds that the protests were held in uncrowded, open-air venues where protesters wore masks and did not cause public disorder. Patsaravalee’s violation of the Severe State of Emergency charge was also dismissed on the grounds that protesting is a constitutional right.

As noted by Poonsuk, provisions in the Emergency Decree did not ban all gatherings, only ones risking the spread of disease. As a result, gatherings where participants complied with disease prevention measures, wearing masks in open-air venues, should not been seen as a violation of the law.

“These cases should never have become cases in the first place.  [The prosecutor] can handle them by adopting a policy of not indicting. The time and resources of the state will not be wasted in prosecution and it will also respect the rights and freedoms of the protesters.”

Yingcheep feels that the society is getting dangerously used to living under a state of emergency. He understands that not everyone is an activist or attend protests. He also recognises that many may feel that they are not affected by the decree. Nevertheless, he asks them to recall that Thailand spent almost 200 days under a curfew in 2021 which, although imposed, did not reduce the risk of contracting Covid-19. Instead, it actually forced people to run all of their errands at the same time, making it harder to maintain social distancing.

In his view, it was understandable for the government to declare a State of Emergency during the first few months of the pandemic, as they were panicking and needed to take control of the situation. However, he believes that during those first few months, the authorities should have been finding other ways to control outbreaks.

Yingcheep argues that, after a few months, it should have been clear that a law designed for wartime was not likely to control a pandemic. He points out that the Communicable Diseases Act already allowed the authorities to do what they did with the Emergency Decree - closing schools, shutting entertainment venues, and banning alcohol sale - and adds that the Emergency Decree only gave the Prime Minister executive power to impose curfews, ban public gatherings, and free officials from the risk of prosecution. In Yingcheep’s view, these are the type of powers Gen Prayut got used to having in the NCPO era and that he is using now to protect his political position.

“After three months, it was apparent that [the Decree] was not the solution [to the pandemic]. They used Covid as an excuse to take over, used a special law to take charge of the country’s administration again. It’s just like a coup government,” Yingcheep said.

Protesters confronting crowd control police during a protest at Nang Loeng Intersection on 28 September 2021

Patsaravalee believes that curfews and 2 years under the Emergency Decree have done little but damage people politically and economically; the infection rate continues to rise. For her, there is no reason to maintain the state of emergency. 

In her opinion, the government has been using the law to “strike back” at its critics in every way possible.   She feels it is counter-productive, that in the face of harsh regulation, people will rebel, that those working in the judicial system will begin to uphold justice. She notes that many people have expressed support, and that while some did not make their stance clear, few were interested in prosecuting protesters, other than those implicated in royal defamation case.

“It is clear that no one is happy with [the arrest of protesters]. People with a professional code of ethics in careers related to the justice system have to feel that this is not right. It’s very clear,” Patsaravalee said.

“There is nothing more obvious than the current situation which will tell you how we have deprived the people of their rights, what the state is doing to the people, and whether Thailand is as democratic as we were led to believe.”

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