Background

On 29 July 2021, the Regulation Issued under Section 9 of the Emergency Decree on Public Administration in Emergency Situations B.E. 2548 (2005) (No. 29) was promulgated by the Council of Ministers of Thailand as the latest measure to deal with the COVID-19 pandemic. Article 1 of Regulation No. 29 Regulation prohibits any publication or distribution of any form of communication that may frighten the people or may cause misinformation of the emergency situation. Article 2 of Regulation No. 29 allows the National Broadcasting and Telecommunications Commission to investigate the IP address and cut off internet access to the persons who committed acts stated by Article 1.

Legal Issues

Section 9(3) also shows vagueness in its wording. The unclear and misleading structure of this provision may raise more concerns in terms of misunderstanding, spread of false information through various platforms, and highly to be interpreted or applied in an unjustifiable way. Included in the provision, the part saying “...to prohibit the publication, distribution or dissemination of letters, print materials or any means of communication containing texts which may instigate fear amongst the people” could be interpreted, in another way, as a suppression of people’s freedom of expression which right here includes the spread of the fact as well. Besides, as of the Civil Court’s key findings, Section 9(3)’s prescription of “communication which may instigate fear or cause misunderstanding of the emergency situation” was too broad and unclear that it deteriorates the people and media’s confidence in their freedom of expression guarded by the constitution. The purpose of this limitation of expression, rather than keeping the society safe from the fear of false and suspicious information, would be instigating fear amongst the people because of its vagueness.

Regulation No. 29 has several issues in regards to fundamental rights. Due to its vagueness, this Regulation can be interpreted in various ways. A major interpretation that the public perceives is the fact that Regulation No. 29 is unconstitutional. Article 1 is a breach of a fundamental right to freedom of expression, of which is protected by the Constitution. This prohibition is establishing a regime of a suppression of said freedom as the vague interpretation of the Regulation can be used deviously to shut down government critics and media. Furthermore, Article 2 is an infringement of a fundamental right to information. As Article 2 empowers the NBTC to essentially cut a person off the internet by blocking their IP address, it is a disproportionate method of handling the prohibited communication under Article 1. Even if the communication satisfies the condition in conjunction with Article 1, having access to the internet taken away is a severe encroachment of the right to information, as well as freedom of thought and expression.

The government’s attempt to prolong the enforcement of the Emergency Decree may not be a proportionate solution to the pandemic. According to Dr. Munin, the state may use the enactment of the emergency decree as a way to assist the state actions committed out of reasons of urgency. These state actions may involve both the lawful and unlawful actions. Sections 16 and 17 of the emergency decree give the government privileges during the pandemic. It states that any reasonable act done, with good faith, by the state’s empowered person under this emergency decree would not be subject to legal punishment and the administrative courts. The government, at the current stage, could already observe models from foreign countries for handling of COVID-19, therefore, it is hard to deny the fact that the government must be able to acknowledge the most effective measures of the pandemic. Still, it chose to work out the situation unconstitutionally by taking away the people’s fundamental rights of expression. 

Development

On 6 August 2021, the Civil Court ruled a temporary suspension on Prime Minister Prayut Chan-o-cha’s Regulation No. 29 due to the provision’s restrictions of people and media’s freedom of expression. 

The Court Decision, according to Article 1, involves the concerns of “communication which may instigate fear or cause misunderstanding of the emergency situation.” This term may not only cover the spread of false information but also other means of information, including spelling of the truth. Therefore, the Court interpreted that the meaning of this term may lead to the limitation of people’s rights of expression under the of Constitution.

As mentioned above, due to the vagueness of Article 1 of Regulation No.29, the Court found that it could affect the assurance of the media and people in expressing their thoughts and opinions, or even the facts, protected under Sections 34 and 35 Paragraph 1 of the Constitution. And the enforcement of this regulation would be an unnecessary limitation of people’s freedom of expression under Section 26 Paragraph 1 of the Constitution. Moreover, the measures under this Regulation did not intend to provide the scope of actions for the state officials to follow. Consequently, this may not be able to prevent unnecessary actions committed by the officials stated in section 9 of the Emergency Decree.

All emergency Regulations must comply with the Emergency Decree on Public Administration in Emergency Situations B.E. 2548 (2005). In the case, the Court ruled that Section 9 of the Act does not indicate the authority of the Prime Minister to suspend a person’s access to the internet. In the current situation of the pandemic where physical meetups are almost impossible, the act of blocking the internet essentially restricts a person from communication; therefore, Article 2 violates Section 36 Paragraph 1 of the Constitution which states “A person shall enjoy the liberty of communication by any means.” Moreover, the Court sees that 

The Court has provided that the government has the ability to utilise radio and television as media to provide the understanding of the pandemic and the occuring event in order to deliver truth without distortion to the public. Therefore, the Court sees that, with such an alternative, the imposition of Regulation No. 29 is overbroad, unnecessary, and unconstitutional; hence, the regulation is to be unenforceable.

Conclusion

Public dissatisfaction arising from Regulation No. 29 is due to its issues in regards to the violation of the rights protected by the law. The Civil Court has taken into account the Constitution and the Civil Procedure Code, which found that Regulation No. 29 actually violated fundamental rights in several ways. The Regulation is too vague in terms of Article 1 when dealing with the instigation of fear by means of communication. It also is unnecessary due to the existence of alternatives as per the Court suggests. Moreover, the Regulation itself, particularly Article 2, is unconstitutional. Overall, the government has the duty to protect the fundamental rights of the people and must enforce the least restrictive means of prohibition in order to ensure the security of both the state and the wellbeing of the people.

Citations

“Civil Court blocks PM's gag on free speech.” Bangkok Post, 6 August 2021, https://www.bangkokpost.com/thailand/general/2161247/civil-court-blocks-pms-gag-on-free-speech

Constitution of the Kingdom of Thailand, Section 36.

Emergency Decree on Public Administration in Emergency Situations B.E. 2548 (2005), Section 9.

“Thailand: Immediately Repeal Emergency Regulation that Threatens Online Freedoms.” Human Rights Watch, 3 August 2021,https://www.hrw.org/news/2021/08/03/thailand-immediately-repeal-emergency-regulation-threatens-online-freedoms.

The Regulation Issued under Section 9 of the Emergency Decree on Public Administration in Emergency Situations B.E. 2548 (2005) (No. 29).“เปิดคำสั่งศาลแพ่ง "คุ้มครองชั่วคราว" ห้ามนายกฯใช้พรก.ฉุกเฉิน "ปิดปากสื่อ." ฐานเศรษฐกิจ, 6 August 2021, https://www.thansettakij.com/general-news/490693.

“เมื่อผู้นำบริหารผิดพลาด ปชช.ฟ้องเอาผิดได้" คุยกับ รศ.ดร.มุนินทร์ : เอ็กซ์-อ๊อก ทอล์คทุกเรื่อง.” YouTube, uploaded by matichon tv, 10 July 2021, https://www.youtube.com/watch?v=HLxWNbdpRJA.

Photo by Post Today

Contributors

Jitkeerati Kulsomboon

Nitchamon Arunsuwangorn

Sponsored by

อ๊บ อ๊บ ปั่นแหลก