An opinion piece by Benjamin Zawacki, Senior Legal Adviser for Southeast Asia at the International Commission of Jurists.
Thailand’s government recently passed up an opportunity for a new approach to the deep South, by declining to replace the Emergency Decree, which violates international standards on human rights, with the somewhat less heavy-handed Internal Security Act (ISA).
Equally concerning is why the government has not looked beyond the South in reconsidering the use of its other extraordinary security legislation: no fewer than 31 of Thailand’s 77 provinces are at least partially under Martial Law.
International law is clear that the extraordinary powers under security laws like the Emergency Decree and Martial Law may only be invoked under a strict set of circumstances, none of which is even arguably applicable in Thailand outside of the southern insurgency (four of the 31 provinces).
Martial Law may be invoked in Thailand “when a situation arises that makes it necessary to maintain law and order and to defend against the danger of attack”, or “when there is an outbreak of war or unrest”. All of Thailand’s provinces that are situated on one of the country’s four international borders are under Martial Law in whole or in part (including the 27 not in the deep South). Among them is Phitsanulok, whose shared border with Laos is roughly only 50km.
This province featured in Thailand’s last war, a three-month affair with Laos that ended in 1988.
Otherwise, Thailand’s border challenges are well-known: trafficking in persons, drugs, and weapons; landmines; refugees and migrants; smuggling of logs, oil, and other contraband; demarcation disputes. While doubtless all of these call for robust law enforcement, only the dispute with Cambodia over the Preah Vihear temple even arguably involves defending against the danger of armed attack.
Several minor but deadly skirmishes with Cambodian forces, as well as considerable mutual saber-rattling, have occurred in several districts of Si Sa Ket province since 2009. It is not credible to claim that Thailand needs to impose Martial Law because of external threats.
A more likely explanation is that Martial Law’s expansive application in Thailand is due to what is common to most security legislation around the region, namely vague language that lends itself to broad interpretation and granting wide powers to the military.
The Martial Law term “law and order”, in addition to more typically applying to civilian law enforcement agencies than to the military, could apply to any situation in which a law is implicated – which is nearly all situations. “Order” and “unrest” are particularly ill-defined.
Moreover, “maintain” suggests law and order need only be threatened to invoke Martial Law, rather than be lost and in need of being restored.
What constitutes an “attack” and the likelihood of such required for Thailand to be in “danger” are also essentially judgment calls. And when is an attack (or a series of attacks) tantamount to an “outbreak of war”?
A second and related reason that Martial Law is so pervasive in Thailand is the large number of military personnel empowered to invoke the law, coupled with, inversely, the difficulty in revoking it later.
While order by royal decree is required for invoking Martial Law on the first set of grounds, even local military commanders can invoke Martial Law in the area under their control on the second set (“when there is an outbreak of war or unrest”), affording them enormous discretion and authority.
In contrast, any and all revocations of the law require order by royal decree, a level of involvement as centralized and bureaucratic as a district military commander’s invocation is local and simple.
Martial Law’s use in Thailand historically supports the analysis that imprecise grounds combined with bureaucratic inertia account for the wide geographical application of the law.
Twice in the past 22 years, orders by royal decree referencing “law and order” have imposed Martial Law on the whole of Thailand, both times via coups d’état in 1991 and 2006.
On only three occasions after the 1991 coup (twice later the same year and once in 1998) was Martial Law lifted in some but not all of Thailand’s provinces. On the eve of the 2006 coup, it was still in effect in all or part of 18 provinces.
Similarly, following the blanket invocation of Martial Law on the whole country in 2006, on only two occasions since (in January 2007 and 2008, respectively) has an order by royal decree revoked the law in 46 of Thailand’s 77 provinces. Why not everywhere?
International law requires that extraordinary security legislation be invoked only in response to an exceptional situation.
Powers granted to security forces and any derogation from human rights must be strictly necessary and proportionate to the situation, and must have a time limitation attached to them.
None of these elements is met in the case of Thailand’s application of Martial Law to its international borders.
Indeed, Martial Law in Thailand allows security forces to arrest people without a warrant, and to detain them for seven days prior to charging them.
Critically, it does not require that detainees be promptly brought before a judge, in flagrant violation of Thailand’s legal obligations under the International Covenant on Civil and Political Rights (ICCPR).
This leaves detainees particularly vulnerable to torture or other ill-treatment at the hands of the security forces, which Thailand has also agreed to prevent and punish as a party to the ICCPR and the Convention against Torture.
In cases under Martial Law of alleged misconduct by security forces, victims are unable to institute a criminal prosecution (though they may initiate a civil action) or to choose their own lawyer; only a military prosecutor is entitled to institute a criminal charge. No appeal can be lodged against judgments or orders of military courts during this period.
The Thai government should reconsider its decision to keep the Emergency Decree in place throughout most of the deep South.
At the same time, it should take the long overdue step of lifting an equally heavy-handed Martial Law everywhere else.