One year living under Head of the NCPO Order No. 3/2015: The exercise of special powers in ordinary situations

On 22 May 2014, the National Council of Peace and Order (NCPO) overthrew the civilian government, took over rule, and declared martial law nationwide across Thailand. The NCPO lifted martial law on 1 April 2015 and replaced it with Head of the NCPO Order No. 3/2015 on the Maintenance of Public Order and National Security, which was issued under Article 44 of the 2014 Interim Constitution and expanded the authority of military officers.

In the year since Head of the NCPO Order No. 3/2015 was declared, there have been a range of abuses of power, a lack of respect for the rule of law and international human rights obligations, and the consistent violation of fundamental rights. Although the powers granted to the authorities under Head of the NCPO Order No. 3/2015 do not differ from those provided by martial law, there has been an increase in the use of violence during the exercise of Head of the NCPO Order No. 3/2015, which has been compounded by the fact that there are no judicial checks on its exercise.

 

 Article 44: Power above the Constitution

The NCPO enacted the 2014 Interim Constitution on 22 July 2014. In principle, a Legal State – a nation governed by law – shall adhere to the sources of power and restraints on the exercise of power as provided by the Constitution.

However, Article 44 provides the NCPO with absolute, unlimited power without any limitations and is not bound by any other provisions in the Constitution. This means that even though Article 4 of the Constitution affirms the human dignity, rights, liberty and equality of the people, this article is made secondary by Article 44, which grants the NCPO Head the authority to give any order regardless of the legislative, executive or judicial force of that order. Article 44 also deems that any additional order given or action carried out in accordance with that order to be legal, constitutional and conclusive. The power of Article 44 of the 2014 Interim Constitution is greater than that of other articles and allows the NCPO to hold boundless power without any legal or constitutional limitations.

Article 44 provides sweeping, unchecked power to the NCPO. There was a case brought by a private citizen to the Administrative Court in Red Case No. 1938/2558 to revoke Head of the NCPO Order No. 24/2015 concerning the resolution of the problem of illegal, unreported and uncontrolled fisheries. The Administrative Court dismissed the lawsuit to revoke Head of the NCPO Order No. 24/2015 because Article 44 makes any order or any action in accordance with that order to be legal and conclusive. For this reason, Thailand cannot be held to be a Legal State as the NCPO retains absolute power.

At present, General Prayuth Chan-ocha has issued 61 Head of the NCPO Orders using the authority granted by Article 44. The orders have centralized power – legislative, executive, and judicial – in the hands of one person. The Head of the NCPO Order No. 3/2015 is a special regulation enacted in an ordinary situation and contains the same content as martial law.

 

The enforcement of laws before the announcement of Head of the NCPO Order No. 3/2015

Before the announcement of Head of the NCPO Order No. 3/2015 on the Maintenance of Public Order and National Security on 1 April 2015, the NCPO declared martial law nationwide on 22 May 2014. Martial law gave the military the power to detain suspects for up to seven days, given reasonable grounds that the suspect was an enemy, had defied the provisions of martial law, or had violated an order of the military authorities.

At the same time, NCPO Announcement No. 40/2014 set conditions for the release of individuals detained under martial law. The conditions stipulated that the individual may not travel overseas without permission from the Head of the NCPO and may not become involved with political activities. The conditions also stipulated that anyone who violates them would be prosecuted and their assets frozen.

In addition, NCPO Announcement No. 7/2014 about the prohibition of political gatherings relies on the authority in martial law to ban any political gathering of five or more persons. Violation of the announcement can be punished with up to 1 year of imprisonment, a fine of up to 20,000 baht or both. According to the Internet Dialogue on Legal Reform (iLaw), there are fifteen cases in which defendants pled guilty and in all cases, both the civilian and military courts suspended the sentences. An exception is the case of Mr. Apichart Pongsawat, who chose to fight the case against him. He claimed that the NCPO illegally seized power and therefore his action was not illegal as it was his right as a citizen to peacefully demonstrate and defend the Constitution. In addition, he also claimed that it was unclear at the time of his action whether or not the NCPO had successfully seized power. On 11 February 2016, the Pathumwan District Court dismissed the case on technical grounds that the inquiry officer of the Crime Suppression Division did not have the authority to investigate the case.

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Mr. Apichart Pongsawat and his lawyer on the day of the judgment at Pathumwan District Court

Further, NCPO Announcement No. 39/2014 set the conditions for the release of people who were summoned to report to the NCPO and No. 41/2014 stipulated that defying or failing to comply with a summons order was a crime. In three months following the coup, the NCPO issued 37 orders summoning 472 individuals to report to the authorities including politicians, academics, activists, and members of political movements, with politicians comprising the majority of those summoned. The reason given by the NCPO for the summons orders was “to provide a measure to facilitate the maintenance of peace and order.”

In addition to granting the military the authority to detain individuals for up to seven days without a warrant, martial law also provided them with the power to search and confiscate without a warrant and the authority to prohibit various actions, such as to impose a curfew and prohibit individuals from leaving their homes. Martial law is usually enacted during wartime, which is a special situation. It provides the military with powers over the civilian authorities and provides them with greater authority than usual. The lack of warrants needed for the actions noted above, which are required in normal times as stipulated in the Criminal Procedure Code, means that there is no judicial audit of the military’s exercise of power under martial law.

 

Key content of Head of the NCPO Order No. 3/2015

Overall, Head of the NCPO Order No. 3/2015 appoints military officers as “Peacekeeping Officers” and allows them to search, confiscate, and detain individuals for up to seven days without a court order. The power from the order corresponds with that from martial law which places the military authorities above the civilian authorities. It is clear that the NCPO issued this order as a replacement for martial law.

In addition, Article 12 of Head of the NCPO Order No. 3/2015 prohibits political gatherings of five or more persons, which is a replacement for NCPO Announcement No. 7/2014 which prohibited political demonstrations. Article 6 of this Order stipulates that the Peacekeeping Officers have the authority to summon an individual, which is similar to the NCPO summons orders few months after the coup. Article 11 gives the Peacekeeping Officers the authority to set the conditions for release and violation of these conditions constitutes a violation of the Order.  This means that the Order also functions as a replacement for NCPO Announcement Nos. 39/2014 and 40/2014 regarding the conditions for the release of detained persons.

The Peacekeeping Officers are military officers at the rank of second lieutenant appointed by the Head of the NCPO or a person designated by the Head of the NCPO. However, since the order has been in force, in many cases, those acting as Peacekeeping Officers were not in uniform and did not identify themselves as such. This has resulted in people being unable to ascertain whether or not a person is really a Peacekeeping Officer. In some cases, the authorities have denied the detention of an individual but it was confirmed later that military officers had arrested the person. This was the case when Mr. Thanet Ananthawong was taken from Sirindhorn Hospital on 13 December 2015.

Moreover, the method of arrest and detention of an individual for whom an arrest warrant has already been issued is unclear. The military officers invoke the power from Head of the NCPO Order No. 3/2015 to make such arrests, even though police officers have the authority to arrest them according to the Criminal Procedure Code. In many cases, those arrested were subject to seven days of detention without charge by military officers in a military camp. They were held in undisclosed locations and prohibited from contacting outsiders, which made the detentions into temporary enforced disappearances. The seven days of detention prior to bringing charges and carrying out interrogation directly benefits the inquiry process and the prosecution.

 

Therefore, Head of the NCPO Order No. 3/2015 was enacted to create an exception to allow legal proceedings to be held without adherence to procedural law that guarantees the rights of the victims, alleged offenders, and defendants. This is the case even though martial law has been lifted as the situation is back to normal and there are no instances of violence that are threatening national security.  The various disagreements of opinion present are typical for any given society and does not constitute a special situation in any sense.

 

An example of how civilian auditing of unlawful detention is not possible under Head of the NCPO Order No. 3/2015 is the dismissal by the Criminal Court of a habeas corpus motion under Article 90 of the Criminal Procedure Code regarding Mr. Thanet Ananthawong. The Court considered the detention lawful according to Head of the NCPO Order No. 3/2015 even though no inquiry was conducted to find out the reasons for the arrest or whether the persons responsible for the detention were Peacekeeping Officers. This case confirmed that the rights and liberties of the people are not guaranteed and there are no check and balance mechanisms upon the actions of the authorities under Article 44.

The Peacekeeping Officers have the authority to perform duties related to the prevention and suppression of actions which constitute offences against the king, offences against national security, offences under weapons laws, and violations of NCPO Orders and Head of the NCPO Orders. Their duties are limited in comparison to the authority granted to them by martial law which did not define the offences to be suppressed. The Peacekeeping Officers have the authority to (1) issue a summons order to any individual to report to him, give a statement, or deliver documents or evidence; (2) arrest a person who committed a flagrant offence and bring him to inquiry officials; (3) support or assist inquiry officials or take part in an investigation; (4) enter any residence or place to carry out searches, including searches of persons or vehicles, when there is a sufficient reason to suspect that a person who allegedly committed one of the aforementioned offences is hiding or evidence is being kept on the premises and in which a delay while applying for the issuance of a search warrant might risk the escape of the suspect or the removal or destruction of said property or evidence; (5) seize the evidence found or freeze the assets of a suspect; and (6) carry out any other act assigned by the NCPO.

Granting this kind of authority to the military constitutes an intervention into the criminal justice process from the initial stages of arrest, detention, and investigation. Considering that the four offences in question are all to be prosecuted in military courts, it is apparent that the judicial system under the NCPO lacks independence and impartiality, which are fundamental to the right to a fair trial and the broader protection of human rights in the judicial system.

In sum, although martial law has been lifted, Head of the NCPO Order No. 3/2015, which may seem to be a more relaxed measure, contains the same content as martial law. Head of the NCPO Orders are not subject to any review mechanisms as Article 44 of the 2014 Interim Constitution provides that the orders promulgated through the article are deemed legal. This may lead to more severe human rights abuses by the authorities under these orders than while martial law was in force, as the courts were able to hold reviews into any illegal actions carried out under the auspices of martial law.

 

The situation after the announcement of Head of the NCPO Order No. 3/2015

  • Restriction of freedom of expression

Head of the NCPO Order No. 3/2015 is a crucial instrument for the NCPO to restrict freedom of opinion and expression. The NCPO imposed several measures to suppress the right to exercise freedom of expression such as the summoning of individuals and the prohibition of political gatherings. A range of additional laws have been used in concert with Head of the NCPO Order No. 3/2015, including the following: the Public Assembly Act of 2015; Article 116 of the Criminal Code, which pertains to the agitation of unrest; Article 112 of the Criminal Code, which pertains to defamation of the king; and the Computer Crimes Act of 2007, which has been broadly interpreted beyond the extent of the law.

Regarding the prohibition of political gatherings, Thai Lawyers for Human Rights has founded that at least 26 persons across five cases have been charged for defying Article 12 of Head of the NCPO Order No. 3/2015 which prohibits all political gatherings of five or more persons. For instance, on 22 May 2015, seven students from Khon Kaen University who are members of the Dao Din activist group unfurled an anti-coup banner at the Democracy Monument in Khon Kaen province. They were arrested and faced charges of defying Head of the NCPO Order No. 3/2015. On the same day, students and other participants in an anti-coup event in front of the Bangkok Art and Culture Center were arrested in accordance with the Order; nine persons were subsequently charged with violating the ban on political gatherings. Both groups later founded the New Democracy Movement (NDM) and organized a peaceful protest at the Democracy Monument in Bangkok on 25 June 2015. Fourteen student activists who organized the protest were arrested and charged with violating the ban on political gatherings under Head of the NCPO Order No. 3/2015 and sedition under Article 116 of the Criminal Code, which means that this case falls within the jurisdiction of the military court.

 

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NDM activists protested against the coup and violation of freedom of expression at the Democracy Monument on 25 June 2015

A significant problem of the use of Article 12 of the Head of the NCPO Order No. 3/2015 is that the authorities broadly interpret the meaning of “political gatherings,” which causes almost every public gathering to be within the scope of violation of the Order. Activities demanding political rights, movements related to the environment and natural resources, and specific protests, including the “Give Back The City Plan” group’s complaint submission, a rally demanding a traffic light at Ton Doo market in Chiang Mai province in northern Thailand in October 2015, the elections of the president and committee members of the Lawyers Council of Thailand (LCT), and a Buddhist robe-offering to fund the movement against a coal power plant in Bamnet Narong mine in Chaiyaphum province in northeastern Thailand, were all interpreted as political gatherings by the authorities.

 

  • The summons of individuals

During the first months after the coup, the NCPO broadcasted orders summoning people to report to the Royal Thai Army Club via television and radio. Apart from these official orders, the military also uses the authority under martial law to summon and detain individuals without an official order by telephoning them to arrange to meet or arresting them from their homes. The same types of unofficial summons continued after the enactment of Head of the NCPO Order No. 3/2015 although official summons orders are no longer issued. Since the coup, at least 904 individuals have been summoned or visited by the military.

Thai Lawyers for Human Rights (TLHR) has observed that Head of the NCPO Order No. 3/2015 does not stipulate the forms and methods of summons. Officials can order any person to report to them and arrest the person if they fail to comply. Drawing on this authority, military officials frequently threaten people who exercise their right to freedom of expression that under Article 44 they can be immediately arrested and taken for attitude adjustment. Article 44 and Head of the NCPO Order No. 3/2015 have both become tools of political intimidation used broadly by the authorities to intimidate and suppress freedom of expression and public gatherings. Three examples are the detention of Mr. Wattana Muangsuk from his residence after criticizing the NCPO, the detention of Pheu Thai Party member Mr. Worachai Hema, and the detention of Mr. Sarawut Bamrungkittikhun, the administrator of the Facebook page “Pud Praden” (Open Issue).

 

  • Arbitrary detention and enforced disappearance

Although Head of the NCPO Order No. 3/2015 limits the detention of individuals to no more than 7 days, it remains in conflict with Thailand’s obligations as a state party to the International Covenant on Civil and Political Rights (ICCPR). Detention in undisclosed locations which outsiders, even relatives and lawyers, cannot access or investigate constitutes arbitrary detention according to Article 9 of the ICCPR. Taken together, Article 9, which pertains to the to liberty and security of person, and Article 14, which pertains to the right to a fair trial, clearly state that a person shall not be subject to arbitrary arrest and detention and has the rights to be informed of the reason for his arrest and the charges against him, to receive visits from relatives, to have access to legal aid and to be brought promptly to trial.

Moreover, such actions constitute a breach to state obligations under the International Convention for the Protection of All Persons from Enforced Disappearance (CED) as the deprivation of liberty of an individual by state authorities and the subsequent concealment of the location where the person is being held subject them to a fate beyond the protection of the law. For example, the cases of the arrest and detention of Mr. Thanakorn Siripaiboon and Mr. Sarawut Bamrungkittikhun fall within this category. There also reports about intimidation and physical abuse during the arrest and detention of Mr. Sirawit Seritiwat, who was arrested from Thammasat University on 20 January 2016 by at least eight military officers whose faces were covered. He was blindfolded and was not informed of the reason for his arrest, his rights, or the location where he was detained. This constitutes arbitrary detention and a serious violation of human rights.

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Mr. Sirawit Seritiwat (leftmost) during the “Train trip to Rajabhakti Park to search for and shed light  upon corruption” on 7 December 2015. He was subsequently arrested at night by military officers at the Rangsit campus of Thammasat University.

 

In addition, it is the view of TLHR that several instances of arrest and detention by the military officers have not complied with Head of the NCPO Order No. 3/2015. The Order only allows the officers to arrest in cases of flagrant offence, but in actuality, military officers have invoked the Order to arrest individuals before issuing an arrest warrant has been issued and then transferred them to inquiry officials, such as in the case of Mr. Thanakorn Siripaiboon.

 

However, TLHR has also found that military officers arrested people whose actions did not constitute any crime and brought them to police stations to record a daily report and personal information with no legal basis, such as in the instance of those involved in the campaign against the constitution draft by the “Red Path” group on 6 March 2016. The military has also created obstacles to organizing various seminars, including “Democracy Classroom Chapter Three: Field Marshal Sarit” by the New Democracy Movement at the Tha Prajan campus of Thammasat University on 21 November 2015, a public talk on the topic of “The New Constitution: What Should Be Done?” and the PechaKucha 20×20 competition for presentations about the Constitution at the Bangkok Art and Culture Center (BACC) on 28 February 2016.

 

  • Military prisons: An expansion of detention under Head of the NCPO Order No. 3/2015

In addition to providing for detention of up to 7 days, Head of the NCPO Order No. 3/2015 also allows for detention to take place under the custody of military officials. This means that detention is not limited to police stations and prisons. After seven days of detention, the military officers must release or transfer the detainee to inquiry officials for prosecution. However, on 11 September 2015, the Minister of Justice issued Ministry of Justice Order No. 314/2015 to establish the Nakhon Chaisri Road temporary remand facility in the 11th Military Circle in Bangkok “for the sake of the maintenance of security and to accommodate the deprivation of liberty and the treatment of suspects in cases concerning national security and other related cases.” Military officers have the power to detain people for longer periods than seven days in this facility as they have been appointed as “special custodial officers.”

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Suriyan Sujaritpolawong, aka Mor Yong, while being escorted to the Bangkok Military Court for a detention order to be sought after he was accused of falsely citing the monarchy for his own benefit. He was taken to the temporary remand facility on Nakhon Chaisri Road and died in custody a few days later.

 

Since its establishment, at least thirteen detainees from four cases have been held in custody at the temporary remand facility on Nakhon Chaisri Road. At the time of the writing of this article, at least four detainees remain in the facility. The only visitors that detainees are permitted are their designated lawyers; military officers are present during meetings between lawyers and defendants. A defendant in the Ratchaprasong bombing case reported being tortured in the facility. There are two cases of deaths in custody; in both cases, the cause of death was reported only by the authorities and no relatives of the deceased were present during the autopsies. The temporary remand facility can be understood as an extension of the limited period of detention by the military stipulated by Head of the NCPO Order No. 3/2015 to an indefinite period.

 

Conclusion and recommendations

In sum, the exercise of power by the military as Peacekeeping Officers, including the summons of individuals, the arrest and detention of individuals for up to seven days, and the prohibition of public gatherings of five or more people, promotes the violation of the rights and liberties of the people as it allows for the broad and arbitrary exercise of power without any check and balance mechanisms. This is the case even though Head of the NCPO Order No. 3/2015 only affords authority to the military officers appointed as Peacekeeping Officers and further limits this authority to cases of offences under the jurisdiction of the military courts. The reason is that Article 44 of the Interim Constitution does not provide the opportunity for review and confirms the legality of the orders issued under it and any actions carried out in accordance with them.

In relation to the exercise of Head of the NCPO Order No. 3/2015 and human rights violations, Thai Lawyers for Human Rights calls for the National Council for Peace and Order (NCPO) to cease to invoke the authority provided under Article 44 of the 2014 Interim Constitution. There is no reason for Article 44 to remain in in use. TLHR further calls on the NCPO to revoke Head of the NCPO Order No. 3/2015 and return to normal procedures under the Criminal Code and Criminal Procedure Code.

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