Thai court renders emergency decree meaningless, limits officials' powers

Originally published at Siam Voices on February 20, 2014 The Thai Civil Court yesterday ruled to sharply limit the authorities' powers to deal with the ongoing anti-government protests, while maintaining the state of emergency which was declared last month amidst increasing violent incidents.

The case was filed to the court by Mr. Thaworn Senniam, a core leader of the People′s Committee for Absolute Democracy With the King As Head of State (PCAD) [sic!], who argued that the State of Emergency enacted by the government of Prime Minister Yingluck Shinawatra violates the rights to free assembly guaranteed by the 2007 Constitution. (...)

At 15.00 today the majority of the judges ruled that the government will not need to repeal the State of Emergency, but the verdict also prohibits the authorities from exercising many powers prescribed in the emergency decree.

According to the verdict, the security forces cannot launch a crackdown on anti-government protesters, seize any chemicals from the protesters, dismantle any barricades erected by the protesters, prevent individuals from entering any building at their own will, close down traffic, evacuate or seal off protest areas.

Most notably, the authorities are also prohibited from banning political gathering - the crucial aspect of the emergency decree.

"Court Strips Govt Of Various Emergency Powers", Khaosod English, February 19, 2014

The ruling comes a day after deadly violence erupted between security authorities and protesters on Tuesday at Phan Fah Bridge as the police attempted to reclaim some rally sites occupying public roads. One policeman and four protesters were killed by gunshots with 68 reported injured. It appears that both the police, but also men among the protesters, were heavily armed and exchanged gunfire, in addition to a widely circulated online video showing a grenade attack on police officers (WARNING: graphic content!).

Nevertheless though...

The court, however, found that the protests were being carried out “peacefully without weapons,” and ordered that the demonstrators’ rights and freedoms “be protected according to the Constitution.” The decision bars the government from using force or weapons to crack down on the demonstrators.

"Thai Court Limits Crackdown on Protesters", New York Times, February 19, 2014

The Civil Court echoes a decision last week made by the Constitutional Court to reject a petition by the ruling Pheu Thai Party to outlaw the protests, similarly stating that the actions by the protesters - including the seizing of government buildings, threats against members of the media and most of all the obstructions on election day - are covered by the constitutional right to protest and should be challenged under the criminal law instead, if at all.

It has to be noted that during the anti-government red shirt protests of 2010, the Civil Court upheld the authorities' right to disperse protesters since they have "caused hardships and hurt people’s freedom and [authorities] have full rights to reclaim the area."

The reactions from the government side have been rather tame: interim deputy-prime minister Surapong Tovichakchaikul said the ruling will "complicate" the work of the security officials, while the man in charge of overseeing the protests, Chalerm Yubamrung, remained unconcerned, since they had "no plans to disperse the protesters anyways for now" and even thanked the Civil Court for not outlawing the state of emergency, which is still scheduled to end on March 22.

However, other observers see this as another wrench being thrown into the caretaker government's works in its dealing with the protesters. Human Right Watch's Sunai Pasuk sums it up:

Prominent legal analyst Verapat Pariyawong, who earlier called the Constitutional Court "indifferent to the flagrant abuse" by the protesters, goes even so far saying:

The Thai civil court's order today is one step closer to full scale judicial coup. (...)

2. The constitutional court's ruling only binds the civil court legally but not factually. That means the civil court is bound by legal interpretation but there is no judicial basis for the civil court to rely on factual determination by the constitutional court. The constitutional court determined the facts at one point in time but facts change by minute, therefore it is judicially impossible and legally illogical for the civil court to disregard the current situation and conveniently rely on the constitutional court's ruling.

In sum, the civil court basically teamed up with the constitutional court in attempts to intervene in the executive domain, where the court has no accountability, and pave ways for the protestors to claim pseudo-legitimacy to overthrow the government.

Facebook post by Verapat Pariyawong, February 19, 2014

The Civil Court's ruling has effectively cut off the emergency decree at its knees and the powers of interim Prime Minister Yingluck Shinawatra's caretaker government are seemingly being more and more marginalized - than it already is by law - by the judiciary and (supposedly) neutral government agencies.

The Election Commission has changed its plans again to complete February 2 elections (more background here), while the National Anti-Corruption Commission is investigating against PM Yingluck herself for "neglect of duty" in the government's increasingly disastrous rice-pledging scheme.

These developments will also very likely embolden the protesters to further up the ante in their disruptive crusade to bring down the government by - judging by past actions - any means necessary.