National Security Laws: Key implications for ThailandNational Security Laws: Key implications for Thailand

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The rise of the nation-state in the past century has witnessed a proliferation of laws concerning national security. In reality, the grand question is not whether to have national security laws _ of course, there must be some laws _ but rather what kind of laws and what type of checks and balances in their application so as to prevent abuse of power. It is this quandary which challenges many societies today, and Thailand is no exception to this dilemma.

The rationale behind all these laws is usually the need to counter the risk or threat posed to society. Yet, care has to be exerted here to forestall a disingenuous approach, as there may be three kinds of threats: actual threats, potential threats and fictitious threats.

In Thailand, there are at least five sets of laws which pertain to the issue under the umbrella of the 2007 constitution. First, there is criminal law, represented by the Criminal Code and Criminal Procedure Code. There are a variety of provisions in Thai criminal law which can be invoked on this front. The most notable in recent times is the addition of the crime of terrorism to the Criminal Code. In section 135 of the Criminal Code, this offence is defined as covering acts which intimidate the Thai government, a foreign government or an international organisation, leading to violence or disorder creating fear among the population. This crime may lead to the death penalty. Yet, the Criminal Procedure Code, together with the constitution, provides various safeguards including the right of access of accused persons to the courts within 48 hours of their arrest.

Second, there is the Martial Law Act, which dates from the time of an absolutist setting, enacted nearly a century ago. Basically, under this law, the military can arrest people without a court warrant and detain them for seven days without access to the courts. Effectively, the administration of justice is transferred from civilian to military authority. The law also brings into play military courts, thus conferring on these courts (rather than civilian or civil courts) the power to deal with offences on the part of the military, with fewer safeguards to respond to civilian grievances.

This law is still applied in Pattani, Narathiwat and Yala provinces in the South, although its application in areas of Songkla province was revoked a few months ago.

Third, the presence of the 2005 State of Emergency Decree. This law has been the subject of greatest discussion in recent years due to a variety of anomalies inherent in it. The law allows the authorities (the executive branch in cooperation with law enforcers, especially the military) to limit the exercise of various rights such as the freedoms of expression, communication and assembly. A person can be arrested with a court warrant and detained for seven days without access to the courts; this is renewable, leading to possible preventive detention for 30 days without trial before the courts. Section 12 of this law enables the authorities to detain people in unofficial locations (beyond prisons and official detention centres), leading to opacity in the administration of justice. Moreover, the law prevents aggrieved persons from accessing the Administrative courts to seek redress. Officials carrying out their duties are exempted from responsibility, thus giving rise to the shield of impunity, and aggrieved persons can only claim compensation in the quest for justice. The government also needs to renew application of the law every three months (through cabinet approval) and this has been done some twenty times.

In practice, this law has been much used in Thailand’s South, and in the past year more broadly in response to the altercations between groups of different political colours. Application of the law in the South has meant that many suspects are detained without access to the courts for 30 days ( plus another seven days under martial law) and there is no guaranteed access to lawyers. Moreover, suspects who are released are often rearrested on the basis of multiple warrants issued by the authorities, compounded by the limited granting of bail. The emergency decree is still applied in Bangkok today.

Fourth, the advent of the 2008 Internal Security Act 2008. This law integrates various elements of the State of Emergency Decree, such as constraints of the various freedoms mentioned, into a more permanent framework. The act establishes a national security command centre under the prime minister, with a strong presence of the armed forces and a number of other stakeholders, including at the regional level. Intriguingly, the law introduces a provision (Section 21) whereby suspects can be sent to training camps, subject to a court order and the suspects’ consent, for up to six months to help change their ways. Compliance with this measure leads to delisting of the suspects from the ”blacklist”. The law also prevents aggrieved persons from gaining access to administrative courts, but access to ordinary courts is possible.

Interestingly, this law has been much used in the past year, particularly in regard to the violence marring the Bangkok metropolitan area. Various proclamations under this law also enable the authorities to interlink with other laws, thus allowing them to exercise powers under these laws. For instance, the proclamation on April 1, 2010 empowers the so-called command centre to apply the following ”other” laws under their purview: the Ministry of Defence Act, the Munitions Act, the Prevention of Disaster Act, the Act to Control Use of Loudspeakers, the Land Traffic Act, the Vehicles Act, the Dangerous Substances Act, the Firearms Act, the Navigation in Thai Waters Act, the Hotels Act, the Criminal Code and the Criminal Procedure Code.

Fifth, there are a a number of other laws which bolster a broad notion of national security. Section 112 of the Criminal Code establishes the crime of lese majeste. Anyone can invoke this against anyone else, thus giving rise to the intriguing situation a few years ago whereby a coup leader invoked this provision against a social critic/human rights advocate. The court wisely dismissed the case. The law is now being reviewed by one of the ministries and one of the issues will be the question of locus standi, namely: who should be able to take action in the courts on the basis of this law. Globally the principle of locus standi implies that only those who are directly aggrieved (rather than the general public) have the capacity to litigate/prosecute. Incidentally, coups d’etat are illegal under Thai criminal law, as witnessed by Section 113 of the Criminal Code.

Another law which has been much used recently in the name of national security is the Computer Crimes Act 2007, which has led to the blocking of over 100,000 web pages under this government, according to some sources.

Given that these laws are used cumulatively in several situations in Thailand today, they give rise to the following ambivalent effects:

Geographic spread. While two years ago discourse on these laws would have been largely concerned with the southern provinces of Thailand, the use of the laws in recent months has spread and affects Thailand as a whole.

Cluster effect. Use of these laws opens the floodgate to the conferment of powers derived from other laws on the authorities, with all the attendant dangers. The centrifugal force of the Internal Security Act above is clear: it opens the door today to a cluster of more than 10 other laws listed above as part of the seepage of national security claims.

Rule by exceptionalism. While the constitution and much of the verbal commitment of policy makers is to uphold the rule of law, exemplified (in theory) by access to courts and safeguards to protect accused persons from harm, reality suggests otherwise. The exceptions imposed on rights and freedoms are pervasive on many fronts, thus establishing by default rule by exceptionalism.

Permanency of the temporary. The preferred assumption of national security laws, especially of a draconian kind such as the State of Emergency Decree, is that they should only be resorted to temporarily. Yet, the fact that these laws have been used for so long implies permanency of what should only be temporary measures. In effect, this strikes at the heart of the constitution, since its essence is now compromised by the perpetuation of limitations.

Subjectivisation of justification. While the concerns of the national authorities claiming to protect the public in any country are understandable on one level, care should be exercised to avoid being too subjective in one’s claims.

This is the reason why there are international treaties pertaining to human rights and national security, so that a sense of balance can be established more objectively. In particular, Thailand is a party to the Covenant on Civil and Political Rights, which establishes key parameters on this front. For instance, various rights such as the freedom from torture are absolute rights which allow no exception ( even on the ground of national security).

In regard to other rights, such as freedom of expression and peaceful assembly, limitations are possible but they must comply with various criteria: limitations are permitted if they are backed by law (rather than arbitrary power/discretion); if they are necessary in the interface with ”risk(s)”; if they are proportionate to the circumstances; and if they are in the pursuit of a democratic society.

The state of emergency has also to be declared to the UN for the sake of transparency. This year, Thailand made a declaration to the UN for the first time in this regard, leaving an aftertaste of the omission that prevailed beforehand.

Clearly, the preferred approach is to overcome the excesses of the spate of national security laws, while safeguarding rights and responsibilities under international law and the constitution. It is high time to repeal both the Martial Law Act and the State of Emergency Decree. Even if they are not repealed, they need to be reformed to curb the impunity factor and to respect the many rights that they undermine today.

As for the Internal Security Act, while it opens the door to more transparency than the other two laws, its negative centrifugal impact should not be underestimated.

Thus, the bottom line is that it is best to use the ordinary criminal law and ensure compliance with international standards. As a seminal academic publication on national security laws pronounced once upon a time: ”Support, not Supplant, Civilian Authority”.

Vitit Muntarbhorn is a professor of law at Chulalongkorn University. He has helped the UN in a variety of capacities, including as a consultant, expert and special rapporteur. This article is derived from his presentation at the recent conference on national security laws and Thailand, organised by the Institute of Security and International Studies, Bangkok.
The rise of the nation-state in the past century has witnessed a proliferation of laws concerning national security. In reality, the grand question is not whether to have national security laws _ of course, there must be some laws _ but rather what kind of laws and what type of checks and balances in their application so as to prevent abuse of power. It is this quandary which challenges many societies today, and Thailand is no exception to this dilemma.

The rationale behind all these laws is usually the need to counter the risk or threat posed to society. Yet, care has to be exerted here to forestall a disingenuous approach, as there may be three kinds of threats: actual threats, potential threats and fictitious threats.

From: http://www.bangkokpost.com/opinion/opinion/202963/national-security-laws-key-implications-for-thailand
In Thailand, there are at least five sets of laws which pertain to the issue under the umbrella of the 2007 constitution. First, there is criminal law, represented by the Criminal Code and Criminal Procedure Code. There are a variety of provisions in Thai criminal law which can be invoked on this front. The most notable in recent times is the addition of the crime of terrorism to the Criminal Code. In section 135 of the Criminal Code, this offence is defined as covering acts which intimidate the Thai government, a foreign government or an international organisation, leading to violence or disorder creating fear among the population. This crime may lead to the death penalty. Yet, the Criminal Procedure Code, together with the constitution, provides various safeguards including the right of access of accused persons to the courts within 48 hours of their arrest.

Second, there is the Martial Law Act, which dates from the time of an absolutist setting, enacted nearly a century ago. Basically, under this law, the military can arrest people without a court warrant and detain them for seven days without access to the courts. Effectively, the administration of justice is transferred from civilian to military authority. The law also brings into play military courts, thus conferring on these courts (rather than civilian or civil courts) the power to deal with offences on the part of the military, with fewer safeguards to respond to civilian grievances.

This law is still applied in Pattani, Narathiwat and Yala provinces in the South, although its application in areas of Songkla province was revoked a few months ago.

Third, the presence of the 2005 State of Emergency Decree. This law has been the subject of greatest discussion in recent years due to a variety of anomalies inherent in it. The law allows the authorities (the executive branch in cooperation with law enforcers, especially the military) to limit the exercise of various rights such as the freedoms of expression, communication and assembly. A person can be arrested with a court warrant and detained for seven days without access to the courts; this is renewable, leading to possible preventive detention for 30 days without trial before the courts. Section 12 of this law enables the authorities to detain people in unofficial locations (beyond prisons and official detention centres), leading to opacity in the administration of justice. Moreover, the law prevents aggrieved persons from accessing the Administrative courts to seek redress. Officials carrying out their duties are exempted from responsibility, thus giving rise to the shield of impunity, and aggrieved persons can only claim compensation in the quest for justice. The government also needs to renew application of the law every three months (through cabinet approval) and this has been done some twenty times.

In practice, this law has been much used in Thailand’s South, and in the past year more broadly in response to the altercations between groups of different political colours. Application of the law in the South has meant that many suspects are detained without access to the courts for 30 days ( plus another seven days under martial law) and there is no guaranteed access to lawyers. Moreover, suspects who are released are often rearrested on the basis of multiple warrants issued by the authorities, compounded by the limited granting of bail. The emergency decree is still applied in Bangkok today.

Fourth, the advent of the 2008 Internal Security Act 2008. This law integrates various elements of the State of Emergency Decree, such as constraints of the various freedoms mentioned, into a more permanent framework. The act establishes a national security command centre under the prime minister, with a strong presence of the armed forces and a number of other stakeholders, including at the regional level. Intriguingly, the law introduces a provision (Section 21) whereby suspects can be sent to training camps, subject to a court order and the suspects’ consent, for up to six months to help change their ways. Compliance with this measure leads to delisting of the suspects from the ”blacklist”. The law also prevents aggrieved persons from gaining access to administrative courts, but access to ordinary courts is possible.

Interestingly, this law has been much used in the past year, particularly in regard to the violence marring the Bangkok metropolitan area. Various proclamations under this law also enable the authorities to interlink with other laws, thus allowing them to exercise powers under these laws. For instance, the proclamation on April 1, 2010 empowers the so-called command centre to apply the following ”other” laws under their purview: the Ministry of Defence Act, the Munitions Act, the Prevention of Disaster Act, the Act to Control Use of Loudspeakers, the Land Traffic Act, the Vehicles Act, the Dangerous Substances Act, the Firearms Act, the Navigation in Thai Waters Act, the Hotels Act, the Criminal Code and the Criminal Procedure Code.

Fifth, there are a a number of other laws which bolster a broad notion of national security. Section 112 of the Criminal Code establishes the crime of lese majeste. Anyone can invoke this against anyone else, thus giving rise to the intriguing situation a few years ago whereby a coup leader invoked this provision against a social critic/human rights advocate. The court wisely dismissed the case. The law is now being reviewed by one of the ministries and one of the issues will be the question of locus standi, namely: who should be able to take action in the courts on the basis of this law. Globally the principle of locus standi implies that only those who are directly aggrieved (rather than the general public) have the capacity to litigate/prosecute. Incidentally, coups d’etat are illegal under Thai criminal law, as witnessed by Section 113 of the Criminal Code.

Another law which has been much used recently in the name of national security is the Computer Crimes Act 2007, which has led to the blocking of over 100,000 web pages under this government, according to some sources.

Given that these laws are used cumulatively in several situations in Thailand today, they give rise to the following ambivalent effects:

Geographic spread. While two years ago discourse on these laws would have been largely concerned with the southern provinces of Thailand, the use of the laws in recent months has spread and affects Thailand as a whole.

Cluster effect. Use of these laws opens the floodgate to the conferment of powers derived from other laws on the authorities, with all the attendant dangers. The centrifugal force of the Internal Security Act above is clear: it opens the door today to a cluster of more than 10 other laws listed above as part of the seepage of national security claims.

Rule by exceptionalism. While the constitution and much of the verbal commitment of policy makers is to uphold the rule of law, exemplified (in theory) by access to courts and safeguards to protect accused persons from harm, reality suggests otherwise. The exceptions imposed on rights and freedoms are pervasive on many fronts, thus establishing by default rule by exceptionalism.

Permanency of the temporary. The preferred assumption of national security laws, especially of a draconian kind such as the State of Emergency Decree, is that they should only be resorted to temporarily. Yet, the fact that these laws have been used for so long implies permanency of what should only be temporary measures. In effect, this strikes at the heart of the constitution, since its essence is now compromised by the perpetuation of limitations.

Subjectivisation of justification. While the concerns of the national authorities claiming to protect the public in any country are understandable on one level, care should be exercised to avoid being too subjective in one’s claims.

This is the reason why there are international treaties pertaining to human rights and national security, so that a sense of balance can be established more objectively. In particular, Thailand is a party to the Covenant on Civil and Political Rights, which establishes key parameters on this front. For instance, various rights such as the freedom from torture are absolute rights which allow no exception ( even on the ground of national security).

In regard to other rights, such as freedom of expression and peaceful assembly, limitations are possible but they must comply with various criteria: limitations are permitted if they are backed by law (rather than arbitrary power/discretion); if they are necessary in the interface with ”risk(s)”; if they are proportionate to the circumstances; and if they are in the pursuit of a democratic society.

The state of emergency has also to be declared to the UN for the sake of transparency. This year, Thailand made a declaration to the UN for the first time in this regard, leaving an aftertaste of the omission that prevailed beforehand.

Clearly, the preferred approach is to overcome the excesses of the spate of national security laws, while safeguarding rights and responsibilities under international law and the constitution. It is high time to repeal both the Martial Law Act and the State of Emergency Decree. Even if they are not repealed, they need to be reformed to curb the impunity factor and to respect the many rights that they undermine today.

As for the Internal Security Act, while it opens the door to more transparency than the other two laws, its negative centrifugal impact should not be underestimated.

Thus, the bottom line is that it is best to use the ordinary criminal law and ensure compliance with international standards. As a seminal academic publication on national security laws pronounced once upon a time: ”Support, not Supplant, Civilian Authority”.

Vitit Muntarbhorn is a professor of law at Chulalongkorn University. He has helped the UN in a variety of capacities, including as a consultant, expert and special rapporteur. This article is derived from his presentation at the recent conference on national security laws and Thailand, organised by the Institute of Security and International Studies, Bangkok.

From: http://www.bangkokpost.com/opinion/opinion/202963/national-security-laws-key-implications-for-thailand