30 September 2022 marks the last day of the effect of the declaration of an emergency situation to handle the Covid-19 outbreak in all areas of the country following the Cabinet’s resolution. First announced on 26 March 2020 and subsequently extended 19 times every 1 – 2 months, the emergency situation in Thailand was effective for a total of 919 days or 2 years 6 months, and 6 days.
This period saw high dynamics in the political and economic situation with popular movements emerging to protest the coup government and inequality issues in the society or demand economic interventions against the impacts of the government’s Covid-19 measures. Various forms of protests occurred continuously, almost daily even, against the backdrop of laws, such as the Emergency Decree, being used to prosecute leaders and protesters. As a result, cases have reached an unprecedented number and scope of crime interpretation. Despite the revocation of the emergency situation, the actual law itself, the Emergency Decree, remains unamended. The revocation merely means the suspension of the mandates of the officials assigned and the agencies set up specifically to cope with the situation. Nevertheless, cases resulting from political assemblies up until now is continue its path in and ongoing judicial process
>> 9 Observations on the enforcement of the Emergency Decree on assemblies in the past two years.
The number of people prosecuted almost reached 1,500 with the majority being in Bangkok and its vicinity.
According to Thai Lawyers for Human Rights statistics, at least 1,468 people in 661 cases have been prosecuted for political expression and assembly (many are prosecuted in multiple cases). Among this number, 241 people and 157 cases include youths aged 18 years and below.
On average, 1.59 people were prosecuted with the Emergency Decree daily throughout the period of the state of emergency. Conversely, one Emergency decree case related to protests was filed every 1.39 day.
The prosecution orders can be categorized by regions as follows:
- Cases in Bangkok and its vicinity: at least 569 cases involving 1,257 people
- Cases in the central and east region: at least 12 cases involving 22 people
- Cases in the northern region: at least 29 cases involving 74 people
- Cases in northern east region: at least 36 cases involving 105 people
- Cases in the southern region: at least 15 cases involving 54 people
TLHR’s statistic indicates that the vast majority of the cases, more than four-fifths, are in Bangkok and vicinity, followed by those in the Northeast and the North.
In terms of case clusters and/or timelines, TLHR found that:
- 7 cases occurred from 26 March 2020 until the Free Youth Movement on 18 July 2020.
- 35 cases occurred during the declaration of a serious emergency situation (15 – 22 October 2022).
- 88 cases related to charges of breaching the curfew (most occurred during a series of protests in Din Daeng from August to October 2021. Many protesters also faced charges of breaching the disease control regulations).
- 109 cases of car mob activities (a rally using personal vehicles) which took place mainly from July to October 2021. This is the period where cases were the most widespread in the country (See Car Mob Case Report).
- 41 cases containing charges under the Emergency Decree in conjunction with the Public Assembly Act. While the Public Assembly Act states explicitly that the law should not be used during an emergency situation, the police often used charges under both laws redundantly.
The courts and public prosecutors have already dismissed 51 cases in total.
Meanwhile, looking at the results of cases containing Emergency Decree charges until 29 September 2022, we found that there are:
- At least 41 cases where defendants pleaded guilty, most of whom received fine penalties or had their punishment suspended by the courts.
- At least 23 cases where public prosecutors issued non-indictment orders.
- At least 28 cases underwent trials and were acquitted by the Court of First Instance.
- Eight cases underwent trials and were ruled guilty as charged by the Court of First Instance.
>> See additional information on the statistics of the Emergency Decree cases that were dismissed by the courts/discharged by the public prosecutors
TLHR has found that in most cases convicted in court received penalties of fine. However, two cases received suspended imprisonment sentences: the #SaveWanchalerm protest case at Pathumwan Skywalk on 5 June 2020, in which the two defendants, Parit “Penguin” and Juthathip “Ua”, were sentenced to a suspended 2-month jail term by the Pathumwan Municipal Court, and the 11 August 2011 protest, of which seven citizens led by Worawan “Pa Pao” (Aunty Pao) were sentenced to a suspended 1-year jail term by the Ratchada Criminal Court.
For a small fraction of cases, the courts ruled that organizing or attending protests constitutes an offense regardless of how the protest was organized either with or without Covid-19 preventive measures, in an open air or crowded space, peaceful or incites chaos during the protests.
Meanwhile, the majority of the cases were dismissed by the courts or not indicted by the public prosecutors. The reasons can be summarized as follows:
1. Many accused people argued that they were merely participants, and not organizers. Furthermore, only certain groups of participants were targeted. The witnesses of the accuser, police officers, could not prove either whether the accused/defendant was the organizer. Given the lack of clarity, the accused/defendant was not obligated to obtain a permission to organize the protest and apply the Covid-19 preventive measures.
2. The protest took place in an open space with good ventilation and for a short period of time. Despite certain clusters present, it was never fully packed. Protesters and police officers could move around comfortably. Most protesters also wore masks. Therefore, they were not considered an assembly in a crowded space that deemed risky of disease transmission.
The courts ruled that the Emergency Decree must be interpreted as Covid-19 prevention regulation.The fact that clusters were formed in some parts of the protest site and that protest sites were not fully congested could not be interpreted as a component of crime.
3. Organizing and participating in a peaceful protest without arms to criticize the government is an exercise of a constitutional right to scrutinize the performance of office holders under a democratic regime. It is by no means considered an instigation of disorder that violates the Emergency Decree.
4. The court rulings in some cases indicated that the Announcement of the Chief Officer Responsible for Handling the Emergency Decree on the Security Matters (the commander in chief by position) on the Prohibition of Assemblies, Activities, and Clusters that Lead to the Coronavirus Disease 2019 (Covid-19) Infection had determined additional components beyond what the Regulation mandated and could thus not be enforced. The courts could not use it to deliberate punishment.
In addition, some courts also believed that for the protests to violate the Emergency Decree they must take place in the way that undermines the national security defined by Section 4 of the “State of Emergency”. The fact that defendants invited people to join and they themselves joined a peaceful assembly is not considered undermining national security.
It is to be noted that these rulings were issued by the Court of First Instance only. The plaintiffs and defendants in various cases have decided to appeal or are waiting for the other party’s decision to appeal. At the same time, there are also cases have already been concluded without either disputed party expressing the intention to appeal, including the Udon Thani protest case, the Phayao protest case, or the group of cases of the 21 October 2021 rally to the Victory Monument, where activists were accused separately.
At least 574 ongoing cases.
Looking at the progresses of at least 661 cases as of 29 September 2022, TLHR found that:
- 87 cases are concluded
- 354 cases are at the investigation stage
- 190 cases are in the Courts of First Instance
- 30 cases are in the process of appeal or awaiting decisions to appeal
This indicates that at least 574 cases are still ongoing at various stages in the judicial system despite the Emergency Situation having been lifted.
This situation has caused burdens to thousands of people in terms of time needed to attend court or police appointments and expenses related to travels, sometimes outside of their province, and accommodation, and impacted the relationships with people in their lives as well as their mental health.
In the end, even though the defendant is found not guilty as charged or the public prosecutor did not indict the case, irreversible damages have already been inflicted as a result of time and money required to prove one’s innocence in the judicial process or in terms of the “costs” on the judicial system’s part itself for the use of its personnel (police, public prosecutors, and judges) on such a large scale of cases.
These legal burdens have also weakened the political movement or impeded activists’ expression. That is, these large-scale, systematic prosecutions are considered strategic lawsuits against public participation or SLAPPs.
As the State of Emergency as well as the Covid-19 pandemic have come to an end, so should these cases.