*** NOTE: Details of the January 21, 2013 announcement of State of Emergency can be found here ***
The State of Emergency has been extended for another 3 months by the Council of National Security.
To any newspaper editor (or radio stations, yes I am referring to you ABC Australia and particularly the editors of the World Today) out there, the State of Emergency does not allow for arrests without a warrant/court permission. Martial law which it “replaced” did, but the State of Emergency legislation does not. I have included an introduction to the State of Emergency below as I am sick and tired of reading that suspects can be arrested without court permission/warrant.
On 15 July 2005, the Thai Cabinet approved the adoption of another 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.
The State of Emergency Decree does not apply automatically. First, a state of emergency has to be declared has to be declared in a specific area(s) or throughout the whole country. A state of emergency is declared by the Prime Minister and then approved by the Cabinet within 72 hours. This can be contrasted with martial law which can be declared by the military without reference to the legislature or the Cabinet.
Second, once a state of emergency has been declared then regulations can be issued pursuant to the State of Emergency Decree. By itself, the State of Emergency Decree is just a framework which allows regulations to be issued and until the regulations are issued the provisions have no application. Generally, any regulations issued will only apply within the area declared to be under a state of emergency. This can be contrasted with martial law where all the provisions in the Martial Law Act automatically apply.
On 19 July 2005, a state of emergency was declared in Yala, Narathiwat, and Pattani Provinces for 3 months. This declaration of a state of emergency was most recently extended on 19 October 2006 for a further 3 month period. The declaration of a state emergency stated the government’s reasons for declaring a state of emergency and that was “there are groups causing disorder and terrorism occurring in Narathiwat, Pattani, and Yala”. The declaration also stated that there was a ‘serious situation’, thus allowing regulations to be issued under section 11. Most of the provisions of the State of Emergency Decree have not yet been activated. One provision which has been activated is section 11(1) and section 12 which allows for the authorities to detain suspects for 30 days for questioning (only 7 days under martial law).
Section 11(1) provides that persons
‘suspected of having a role in causing a state of emergency [to arise], or being an instigator, a propagator, a supporter of such an act or [a person] concealing relevant information relating to the act which caused the state of emergency provided that that is necessary to prevent such a 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’ can be detained.
The standard of proof is reasonable cause, per section 66 of the Criminal Procedure Code.
Section 12 states:
In arresting and detaining a suspect under section 11(1), a competent official shall seek permission of the court which has jurisdiction or the Criminal Court. Upon obtaining permission of the court, a competent official shall be empowered to arrest and take a suspect into custody for a period not exceeding seven days.
On 20 July 2005, the Thai government issued a regulation (2548-a0001) activating section 11/1 and section 12. This regulation sets out further procedures on the authorities ability to detain persons under section 12. The authorities have to follow the normal provisions of the Criminal Procedure Code in seeking court permission. After the detention, the authorities are required to lodge details of the detention including who detained the person, reasons for the person being detained, place where person is detained, and details of at least 2 witnesses to the person being detained. These details are to be kept at the court and must be made available to relatives of anyone detained.
Compare with this martial law, where court permission was not required, no independent body could review the detention, no record is kept of suspects who were detained, and anyone could be detained for any reason. Without any safeguards or judicial oversight, this provision was regularly abused and with serious consequences.
In October 2004, in one of the 3 southern border provinces around 1500 people protested outside a police station after 6 Muslims were arrested in what the protestors saw as a culture of ‘arbitrary arrests’ (Tak Bai incident). After a small group of protestors became violent, the authorities detained around 1,300 of the protestors. In the process of transporting the detained protestors to a nearby military camp for questioning 78 people died from asphyxiation and many more were injured. Within 7 days the military released the majority (1172) of the protestors a week later. Under the State of Emergency Decree, the authorities would have needed to demonstrate ‘reasonable cause’ that the protestors had some role in the violence to obtain a warrant to detain the protestors. Such a situation could not occur under the State of Emergency Decree because it is extremely unlikely that the authorities would be able to demonstrate that they have ‘reasonable cause’ to arrest all 1300 people. The protest might not have even happened in the first place because arbitrary arrests are not allowed.
I should note the United Kingdom allows for the detention of suspects for up to 28 days (Terrorism Act 2006, Section 23). Ditto France where people can be detained for much longer although under stricter procedures.
NOTE: If I get time, I will add the relevant references – it is rather difficult with all the government regulations as the details are very long.