Justin Foo Min Hua
National University of Singapore
Faculty of Law
The Thai government’s response to the Covid-19 pandemic was characterized by being highly centralized. This was made possible by the wide powers granted to the Prime Minister of Thailand pursuant to the 2005 emergency decree, which was enacted in 2005 by the Prime Minister of Thailand and authorizes the Prime Minister to declare a state of emergency in the country, in parts or in whole. It was justified by the Prime Minister as a necessary response to the deepening conflict in the south of Thailand.
Significantly, the decree grants the Prime Minister broad powers during emergency situations, and provides the legal basis for a range of special powers which limit and suspend fundamental human rights guaranteed under the Constitution of Thailand and the United Nations International Covenant on Civil and Political Rights (ICCPR), which is legally binding on Thailand, in light of its ratification. In particular, the emergency powers include the prohibition of assemblies, prohibition of certain means of transportation, prohibition of use of certain places, restrictions in relation to the sharing of Covid-19 related information, and certain persons could also be prohibited from leaving their homes.
This decree allowed PM Prayut Chan-o-cha to coordinate a more centralized response to the pandemic together with public health authorities. To this end, the CCSA played a key role as it acted as the central response centre under the state of emergency, thus contributing to better coordination of the country’s response to the outbreak. With the establishment of offices under the CCSA, officials were tasked in a more efficient manner to curb the spread of the virus. Under this structure, all offices and centres under the CCSA report directly to the Prime Minister for prompt updates and command.
In relation to the Covid-19 pandemic, authorities have justified the use of the emergency decree on the basis that it is necessary to control movements within and outside of Thailand in a manner which the Communicable Disease Act is unable to. Dr Taweesilp Visanuyothin, spokesman for the CCSA, explained that the emergency decree allows for state quarantine and tracking to be put in place, and these measures assist the government in controlling the virus in a timely manner. Ultimately, the decree allows for both swift action and coordination on the part of the government. He thus called for the public’s understanding in relation to the implementation of the decree. Prime Minister Prayut Chan-o-cha added that the use of the decree is not politically motivated, and that public health was the government’s top priority in relation to this decision. He explained that it is not yet an appropriate time to lift the state of emergency as the pandemic has yet to be controlled in other countries.
The regulations issued under the emergency decree for purposes of addressing the crisis have reportedly been strongly enforced. While the broad lockdown in Thailand was only imposed after daily increases in cases jumped to the hundreds in late-March, there has been strong action on the part of the police in enforcing the lockdown measures, with more than 40,000 arrests of individuals who broke the curfew during the period, according to Thai police. Considering that Thailand has observed very few local cases since July 2020, if at all, it seems that the imposed measures have been reasonably effective.
However, the broad powers granted under the emergency decree has still raised questions in relation to the choice of legislation by the Thai government, as critics have questioned the motives of the government in invoking the emergency decree, considering that the Communicable Diseases Act seems to be an appropriate legislation for the circumstances. In particular, critics have associated the use of the decree during the pandemic with political repression of dissent with regards to the government’s management of the Covid-19 crisis, under the guise of protecting public health.
A key concern has been the public’s access to information, as the emergency decree has narrowed the information channel to disseminate updates regarding the Covid-19 situation. The Centre for Covid-19 Situation Administration (CCSA) was established to be the single official provider of information regarding the Covid-19 situation. With the CCSA being chaired by Prime Minister Prayut Chan-o-cha, only the Prime Minister or a person appointed by him may release such updates to the public. This decision was made in light of the sheer mass of information on the internet in relation to the pandemic, and the government has expressed that a single channel of information serves to prevent both confusion amongst citizens as well as the proliferation of false news. The CCSA thus seeks to provide the public with clear and concise information by the government on the Covid-19 crisis.
Human rights activists have also criticized the measures under the emergency decree, citing concerns with regards to freedom of expression and peaceful assembly. The measures under the emergency decree include prohibitions on communications that are ‘false’ or ‘misleading’, and critics have raised that these terms have not been explicitly defined under the legislation, thus giving rise to concerns that authorities may have unduly wide discretion under the decree to suppress free speech in relation to those who criticize the government for its management of the crisis. According to reports, there have been at least 30 to 40 cases of people being charged since January under the Computer Related Crime Act (CCA) for creating or spreading “fake news”. In March, an artist was arrested for violating the Computer Crime Act, after putting up a post on his Facebook page, claiming that he and his fellow passengers did not go through screening or medical checks at the airport upon his return from Spain. To this end, Minister of Digital Economy and Society Buddhipongse Punnakanta has expressed that the circulation of information related to the Covid-19 outbreak has been closely monitored so as to ensure that people receive only verified news, and to prevent panic amongst the public. It seems that the incidence of fake news has decreased ever since the government began strict enforcement of anti-fake news laws.
The emergency decree also seems to grant civil, criminal and disciplinary impunity to officials under Section 17, as long as they have “acted reasonably”. This has similarly raised concerns, and the International Commission of Jurists has advised that the decisions and actions of officials exercising powers under the emergency law should be subject to review by the courts.
The issue of impunity is pertinent, especially in the context of the issue of hoarding of controlled goods, which arose amidst the pandemic. There was a period of time during which members of the public were unable to purchase sufficient masks for their use. The hoarding of goods that are necessary for daily consumption and use are prohibited pursuant to one of the regulations issued under the emergency decree. Further, the quality and quantity of the production of controlled goods, as well as the control of their distribution price is governed by these regulations. Notwithstanding the passing of these laws, it was reported that 3,000 pharmacies under the Thai Pharmacies Association still faced a shortage of face masks. This shortage was baffling, considering that officials from the Commerce Ministry’s Internal Trade Department (ITD) claimed that 1.2 million masks were being produced daily by 11 factories in Thailand. In this regard, some speculated that a large number of masks were being hoarded by traders who plan to export the masks at high prices, while allegations of corrupt practices also surfaced. The director-general of the Department of Internal Trade (DTI) was cleared of any corrupt practices involving the reported hoarding of face masks, after a committee was set up by the Commerce Ministry to investigate the matter. A national Covid-19 centre was also set up in Thailand to address the shortage of face masks.
