Legal opinion concerning Order of Head of National Council for Peace and Order (NCPO) no.13/2016

Since March 2016, the National Council for Peace and Order (NCPO) has embarked on the crackdown of influential people without any supporting legal provisions. Until on 29 March 2016, it has issued the Order of the Head of NCPO no.13/2016 to support the policy. In essence, the new order bestows on the appointed competent officials the power to arrest a person who commits a flagrant offence. They can carry out also the detention, search, seizure, freezing of transaction and any act as instructed by the NCPO, though the detention cannot last longer than 7 days and has to be carried out subject to other requirements for a military official.

It could be said that the Order of the Head of NCPO no.13/2016 is similar to the Order of the Head of NCPO no. 3/2015, previously issued including the appointment of competent official, their power and duties, and the waiver of the review of the Administrative making any action carried out by the competent official according to the Order not subject to the review of the Administrative Court.

Nevertheless, the Order of the Head of NCPO no.13/2016 contains certain markedly different detail about which TLHR feels gravely concerned and would like to give a summary and propose our recommendations as follows;

The main points of the Order of the Head of NCPO no.13/2016

(1) Competent official per the Order of the Head of NCPO no. 13/2016

The competent official per the order is called the “prevention and suppression official” and includes;

A military official at the rank of Second Lieutenant, Sub-Lieutenant or Pilot Official and upward
An official appointed either by the Head of the NCPO or a person designated by the Head of the NCPO

The government officials at the rank lower than Second Lieutenant, Sub-Lieutenant or Pilot Official including regular army official, army reservist, and military ranger can be appointed either by the Head of the NCPO or a person designated by the Head of the NCPO as the “assistant prevention and suppression official” and shall be vested with power and duties to assist the prevention and suppression official only upon receiving the order or command.

(2) Persons vulnerable to the impact from the Order of the Head of NCPO no.13/2016

A prevention and suppression official can exercise his power toward a person, only when two elements of crime are met as follows;

Element 1 The person must behave in such a way that will have himself or other person inflicted with an unlawful injury including;

Compelling the other person to do or not to do any act, or to suffer anything by putting him in fear of injury to life, body, liberty, reputation or property of him or another person
Behaving in a manner to induce fear and submission from another person in order to impede the person from disobeying the order or complaining to the authority fearing the impending peril on oneself
Living off an illegal livelihood

This includes the person who hires, asks as favor or instigate another person to commit the aforementioned offence.

Element 2 The person culpable per the element 1 must be accused of committed one of the 27 types of offence per the addendum to the Order of the Head of NCPO no.13/2016.

Therefore, if a person has not behaved in such manner as described in (1) or has behaved in such manner as described in (1) but has not committed any of the 27 offences, the prevention and suppression official shall be prohibited from exercising the power vested by the Order of the Head of NCPO no.13/2016 toward the person.

Except if the prevention and suppression official has the reasonable evidence to believe that the person has committed one of the offences per the addendum to the Order, in such case, they shall have the power to summon the person for inquiry purpose or to give any useful statement.

Element 3 Procedure concerning the detention of a person by the prevention and suppression official

The person shall be deprived of liberty only when the inquiry has not been completed.
The deprivation of liberty shall last no longer than 7 days.
The deprivation of liberty shall not take place in a police station, a jailhouse, a penitentiary or a prison.
The person shall not be treated as an alleged offender.

The observations and concerns toward the Order of the Head of NCPO no.13/2016 by the Thai Lawyers for Human Rights (TLHR) in the context of the current situation

(1) The Order fails to specify clearly regarding the exercise of power by the prevention and suppression official on the following aspects;

1.1 The official is not required to wear a uniform and to present oneself as a competent official prior to executing the power vested in the Order.

1.2 The Order gives a loophole for the military official to hold in custody the arrestee in a “military barrack” similar to the exercise of power vested by the Order of the Head of NCPO no.3/2015 making a visit from outsider impossible and subjecting the person held in custody to human rights violations.

(2) The Order allows the military official to hold in custody a person for up to 7 days separate from the holding in custody of a person accused of committing a crime per the Criminal Procedure Code.

TLHR is concerned that the military official may deny the person deprived of liberty various rights including the right to inform one’s relatives or a person one trusts of the custody and the place where the person is being held in custody, or the right to access to or to consult with one’s legal counsel privately, or the right to contact one’s relatives as appropriate, etc. Until now, the military official often claims since the detention has been carried out invoking special laws, and not a detention invoking the Criminal Procedure Code, therefore, a person deprived of liberty shall have no rights as traditionally provided for as the detention by invoking Martial Lawor by invoking the Order of the Head of NCPO no. 3/2015.

(3) Previously, the Order of the Head of NCPO no. 3/2015 only allows the peace and public order maintenance official to deprive a person of liberty for not longer than 7 days and based only on 4 types of offence. But as it has actually happened, many of the deprivations of liberty thus far have been carried out even though the person had not committed any offence as prescribed by the Order.

For example, the military official has held in custody Mr. Wattana Muangsuk in a military barrack without sufficient evidence that he had committed any breach against the Order of the Head of NCPO. Upon his release, he was charged for an offence per the Computer Crime Act 2007, but not for the violation of the Order of the Head of NCPO no. 3/2015.

In another instance, Mr. Sarawut Bamrungkittikhun, an administrator of a Facebook page “Peod Praden” (Open Issue), was held in custody for seven days in an undisclosed location. Prior to his detention, there was apparently no sufficient evidence and ground to ascertain as to which offence he had committed. It was simply an attempt to invoke power from a special law to deprive a person of liberty.

The issuance of the Order of the Head of NCPO no.13/2016 covering 27 types of offence has simply expanded the types or criminal act liable to the detention on top of what is prescribed for in the Order of the Head of NCPO no.3/2015. It has expanded to cover a wide range of culpable acts including an offence against individual such a libelous act. This has given rise to a concern that the prevention and suppression official can invoke the Order the draconian power to hold any person in custody in a military barrack.

In addition, TLHR is concerned that the Order of the Head of NCPO no.13/2016 can be used against the persons being affected by the policy of the NCPO including villagers in land dispute with the authorities. Previously, the NCPO has invoked its power to evict these villagers from their land.

(4) The Order of the Head of NCPO has expanded the power of the military official appointed to act on 27 types of offence per the addendum.

TLHR is gravely concerned that the military official generally lacks proper understanding as to the enforcement of the laws with lots of detail including many statutory laws. Also, according to the Order, a military official who is not required to have graduated from law including a military reservist or a military ranger to the law enforcement official according to the Order which bestows on the official sweeping power. It can give rise to the abuse of the will of law and the arbitrary exercise of power by the military official invoking the Order of the Head of NCPO no.13/2016.

(5) The Order of the Head of NCPO has been promulgated invoking Section 44 of the 2014 Interim Constitution of the Kingdom of Thailand making it impossible for the judicial review and making it difficult to hold to account the implementation of the Order of the Head of NCPO since Section 44 provides that the act or any performance in accordance with the order is deemed to be legal, constitutional and conclusive.

Recommendation to the public regarding the review of the exercise of power to hold a person in custody per the Order of the Head of NCPO no.13/2016

TLHR deems that after all the Order of the Head of NCPO no.13/2016 does not bestow on the official the absolute power to hold a person in custody for not longer than 7 days, as compliances with some requirements have to be made by the prevention and suppression official. Therefore, if a prevention and suppression official is seen to hold a person in custody and it is likely to be an unlawful detention, the spouse or relative of the person being deprived of liberty, for their own benefit, should have the right to complain to the Court of Justice and ask for a habeas corpus hearing to review the lawfulness of such detention per Section 90 of the Criminal Procedure Code and Article 9 (4) of the International Covenant on Civil and Political Rights (ICCPR).

Recommendation

The Thai Lawyers for Human Rights (TLHR) deems the Order of the Head of NCPO no.13/2016 has been issued unlawfully without considering the need of the people. It exists without legality and its content is intended for depriving the rights and freedom and making it impossible for judicial review and accountability to public. The Thai Lawyers for Human Rights (TLHR) demands that the NCPO should;

Revoke and stop invoking the Order of the Head of NCPO no.13/2016 immediately
Revoke and stop invoking Section 44 of the 2014 Interim Constitution of the Kingdom of Thailand

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