(Unofficial Translation) Judgment of the Civil
Court on the Legality of the Issuance of Emergency Decree On 19 February at
15:30 hours, at courtroom 712, the Civil Court, Ratchadaphisek Road, the Court
delivered its judgment in Black Case No. 275/2557 where Mr. Thavorn Seniam,
core leader of the PDRC, was the plaintiff filing a complaint against Ms.
Yingluck Shinawatra, caretaker Prime Minister and Minister of Defence;
Police
Captain Chalerm Ubumrung, caretaker Minister of Labour and the Director of
Centre for Maintaining Peace and Order (CMPO); and Pol. Gen. Adul
Saengsingkaew, National Police Chief and Deputy Director of the CMPO, as
defendants nos. 1 – 3, for violation as a result of declaring a state of
emergency in Bangkok areas, Nonthaburi, and some districts in Pathum Thani and
Samut Prakan on 21 January 2014, effective from 22 January; and for issuing
regulations under Sections 9 and 11 of the Emergency Decree on Public
Administration in State of Emergency (2005) on 23 January 2014, which were
illegitimate and not yet necessary.
As the aforementioned declaration and
regulations were aimed at restricting the freedom of assembly of the plaintiff,
and as defendant no. 1 had already announced the dissolution of Parliament on 9
December 2013, and could remain in office only as caretaker, and also in
holding the general elections the defendant, as member of the Pheu Thai party,
received an unfair advantage, the plaintiff asked the court to revoke the
Emergency Decree and to prohibit the government from using force to disperse
the protest.
Moreover, at the end of the complaint, the
plaintiff asked the court to issue an order prohibiting the enforcement of the
Decree and relevant regulations on the following twelve points:
1.
To prohibit the three
defendants from using force, or from authorising the use of force or weapons,
to disperse the protest held by the plaintiff and the public;
2.
To prohibit the three
defendants from ordering seizure of goods, consumer goods, chemical substances
or other materials used in the protest organised by the plaintiff;
3.
To prohibit the three
defendants from issuing an order to search, remove, or demolish buildings,
structures or barriers put up by the plaintiff;
4.
To prohibit the three
defendants from issuing an order requesting all sales, use or possession of
goods, medical supplies, consumer goods which might be used in the protest held
by the plaintiff, to be reported or given permission from relevant officers;
5.
To prohibit the three
defendants from banning any act that could block roads and traffic, or any act
that could disrupt the normal use of public roads, in all the areas used by the
plaintiff to organise the protest;
6.
To prohibit the three
defendants from banning gatherings of five persons or more;
7.
To prohibit the three
defendants from banning the use of roads or vehicles, or from setting
conditions on the use of roads for the purposes of the protest;
8.
To prohibit the three
defendants from banning the use of buildings by the plaintiff, or banning the
plaintiff from entering or residing in any place, or from entering into any
areas;
9.
To prohibit the three
defendants from ordering the plaintiff and the protesters to leave the protest
sites, or from banning entry into those areas;
10.
To prohibit the three
defendants from using force, or authorising the use of force by other officers,
to disrupt the protest organised by the defendants.
11.
To allow the plaintiff
and the general public to use or remain in the areas where the Decree is in
force;
12.
To allow the plaintiff
to use roads or vehicles, or to park vehicles in the areas where the Decree is
in force.
The defendants, meanwhile, argued that the
plaintiff and others held prolonged protests which included occupying the
government complex, organising rallies which blocked 14 roads in Bangkok,
cutting off electricity and water supplies, causing inconvenience for others,
and organizing security arrangements to replace the police, which are in
violation of the law. Before the Emergency Decree was declared, violence had
occurred at the Thai-Japan Youth Centre on 26 December 2013 and other areas.
Meanwhile, giant firecrackers and explosive devices (so-called ping pong bombs)
were used in the protests, causing injuries and deaths. Although the
responsible parties cannot yet be established, there have been provocations of
violence which potentially led to clashes during the protest, or clashes
between the police and protestors. Such is not a peaceful protest. Thus, the
executive branch, responsible for the restoration of peace and order to the
country as soon as possible, had to declare a state of emergency on 21 January.
Deliberation by the Court: After having considered
the complaint, submissions and witness statements, and evidence on both sides,
the Court is of the opinion that the plaintiff has the right to submit a
complaint since the issuance of some regulation in questions have affected the
plaintiff’s rights as enshrined in the Constitution. With regard to the
argument of defendants nos. 2 and 3 that the Court does not have jurisdiction
over the matter, the Court is of the opinion that, according to Judgment No.
9/2553 of the Constitutional Court, the exercise of power to issue declarations
and regulations pursuant to the Emergency Decree is not within the usual public
administration procedure. Therefore, the Civil Court, a court of justice, has
jurisdiction over the matter.
Regarding the petition by defendants nos. 2 and
3 to dismiss the case against them on grounds that they were not the ones
issuing the declaration and regulations in question, but merely operational
officers; the Court is of the opinion that, since the Prime Minister issued the
Emergency Decree and set up the CMPO, granting powers to defendant no. 2 as
Director, and defendant no. 3 as Deputy Director, if the issuance of
declaration and regulations are found to be in violation of the plaintiff’s
rights, defendants nos. 2 and 3 must also be held accountable.
Upon questioning the witnesses, the plaintiff
called three witnesses, namely, Mr. Atthawit Suwanpakdee, former member of the
Democrat Party; Mr. Abhisit Vejjajiva, former Prime Minister; and Mr. Tawin
Pleansri, former Secretary General of National Security Council. All three
witnesses stated, similarly, that the protest held by the plaintiff and the
protesters was based on three justifications:
1.
The government proposed
the draft Amnesty Bill, in which defendant no. 1 likely had a conflict of
interest, since some content related to financial cases had been inserted.
Defendant no. 1 had had over 982 million baht in assets seized following the
ruling by the Supreme Court's Criminal Division for Persons Holding Political
Positions to seize 46 billion baht worth of assets from Pol. Lt. Col. Thaksin
Shinawatra, former Prime Minister.
2.
The proposal to amend
the law on the origin of senators is a violation of the Constitution.
3.
The amendment to Section
190 of the Constitution on the making of international treaties violated
Section 68 of the Constitution. After defendant no. 1 called for the
dissolution of Parliament on 9 December 2013, attempts were made to seek loans
worth 130 billion baht to resolve the problems concerning the rice pledging scheme.
The Office of the National Anti-Corruption Commission (NACC) has collected
evidence and brought formal charges against defendant no. 1 for breach of duty
in violation of Section 157 of the Criminal Code.
The protest held by the plaintiff and others is
peaceful and unarmed. The Constitutional Court has previously ruled on this
matter as evidenced from the case in which Mr. Prompong Nopparit, electoral
candidate from Pheu Thai Party, submitted a petition asking the Court to rule
that the protest organised by Mr. Suthep Thaugsuban, Secretary-General of the
PDRC, and others since 31 October 2013 was an act to overthrow the government
which violated Section 68 of the Constitution. The Constitutional Court has
ruled in this case that it was a peaceful protest, the right to which is
enshrined in the Constitution. Therefore, it was not a violation of Section 68.
Mr. Abhisit further explained that during the
protest staged by the red-shirts, violence erupted near Ramkhamhaeng
University. The executive branch, however, turned a blind eye to the incident
and did not proceed with an investigation to find those responsible. The
spokesperson of the CMPO argued that the incident was likely caused by a third
party or the opposition group. Thus, the declarations and regulations issued
pursuant to the Emergency Decree was not aimed at controlling or resolving the
situation, but used as a tool to restrict the plaintiff’s exercise of freedom
of assembly in their political movement.
Although the Executive has the power to issue
declarations and regulations under the Emergency Decree, justice and equality
must be observed in the process for the purpose of the law to be fulfilled. Any
act of the Executive must comply with Section 3 paragraph 2 of the
Constitution. This clause stipulates that, in carrying out their duties, the
Parliament and the Cabinet, the courts and other institutions under the
Constitution must adhere to the rule of law - a principle vital to human
dignity and equality according to Section 4 which protects the rights, freedom
and equality of the people.
The facts gathered from witness statements
suggest that the Constitutional Court has previously ruled that the protest
organised by the plaintiff and other protesters is peaceful and unarmed. The
rights and freedom of the plaintiff and other protesters, thus, must be
protected under the Constitution. Declarations and regulations which prohibit
entry into buildings and areas, or prohibit the use of vehicles and roads,
including those which require the protesters to leave the protest site, affect
and violate the rights of the plaintiff and other protesters under the
Constitution which is the highest law of the land. Therefore, those
declarations and regulations have no effect on the plaintiff and other protesters.
Since the plaintiff and other protesters are
holding a peaceful and unarmed demonstration, as the Constitutional Court has
ruled, defendant no. 1 cannot use force or weapons to disperse the protest. As
it was alleged that there was an order to bring police officers into Bangkok to
break up the protest, the Court saw it fit to deliver this judgment to protect
the rights and freedom of peaceful assembly.
The Court hereby rules that: the three
defendants are prohibited from enforcing the Emergency Decree and from issuing
declarations and regulations pursuant thereto. Those declarations and
regulations are not to be enforceable against the plaintiff and protesters from
21 January 2014 onwards.
In addition, the three defendants are prohibited
from the following:
1.
Using force, or
authorising the use of force and weapons to break up a peaceful protest
organised by the plaintiff and other protesters, in accordance with Section 63,
paragraph 1, of the Constitution of Thailand B.E. 2550;
2.
Ordering seizure of
goods, consumer goods, chemical substances or other materials which have been
used, or will be used, for any act, or to support any act, by the plaintiff and
the people;
3.
Issuing orders to
search, remove or demolish buildings, structures, or barriers set up by the
plaintiff and the people;
4.
Prohibiting the sales,
use, or possession of medical supplies, consumer goods, chemical substances or
any other material or equipment which could be used by the plaintiff and the
protesters;
5.
Banning any act that
amounts to blocking traffic and roads, any act that causes disruption to the
normal use of roads in all areas that the plaintiff and the people occupy for
the purposes of the protest;
6.
Prohibiting public
gatherings of the plaintiff or of five or more people in certain areas;
7.
Prohibiting the use of
roads or vehicles, or setting restrictions on the use of roads or vehicles by
the plaintiff and the people for the purposes of the protest;
8.
Prohibiting the use of
buildings, entry into or residing within any building or place; or prohibiting
entry into any area by the plaintiff and the people;
9.
Ordering the evacuation
of the plaintiff and the people out of the protest sites; or prohibiting the
plaintiff and other protesters from entering the protest sites.
However, two out of five judges gave dissenting
opinions, stating that the Court should revoke all declarations and regulations
issued under the Emergency Decree of 21 January 2014. They were of the opinion
that those regulations were aimed to be enforced only against certain groups,
namely the plaintiff and the protesters. With regard to the protest, the
Constitutional Court had previously held that demonstrations by the plaintiff
and the protesters against the draft Amnesty Bill was peaceful and unarmed. In
addition, it stemmed from the public’s lack of confidence in the country’s
administration by the government, and was the exercise of freedom according to
the Constitution. The issuance of those regulations, therefore, curtailed the
rights of the plaintiff and the protesters under the law.
(thailand.prd.go.th)