The Draft Bill on the Maintenance of National Security is riddled with problems and has given rise to many questions and suspicions in Thai society. We the undersigned organizations would like the current interim government and parliament to drop such a draconian draft bill and review what their role should be during this transition period. The draft bill has far reaching implications for a constitutional democracy and the civil liberties of an individual because;
1) The National Legislative Assembly, which is an interim parliament constituted under an interim constitution, does not have legitimacy to enact a law which imposes serious limitations on the civil political rights of the people. Since a new Constitution is to be adopted after a referendum, all law making business affecting rights of the people should be deferred till a new Constitution is in place. Further an elected parliament, representing all sections of the society should be responsible for such law making.
2) Article 3 (1) of the Draft Maintenance of National Security Act (NSA) explains maintenance of national security as maintaining, ‘pride in Thainess', ‘love and concern for Thai culture and land of the Thais'. Equating national security with ‘Thainess' results in branding any person who is non Thai as the ‘other' who is to be viewed as a threat to the security of the Kingdom. The National Reconciliation Commission in its report in 2006 clearly said that cultural diversity was a ‘precious historical heritage' and ‘social reality' which needed to be preserved. The report also said that, historically ‘Thai identity' had been created by dictatorial regimes - and today, it seems that history is trying to repeat itself. We should learn from history and not replicate the mistakes.
3) Article 3 (2) defines national security. Under the draft law, an act that aims to - destroy or damage life and property, cause sabotage, acts of terrorism, trans-border crime, an attack, propaganda, incite use of violence, cause unrest in lives of people or cause damage to security of State - is deemed to be a threat to national security. The Act gives power to the Internal Security Operations Committee (ISOC), comprising mainly of officers from Police, Armed forces, Intelligence, Ministry of Defence to implement its provisions. Article 25 gives power to the ISOC to issue restrictions on the freedom of movement of the people, right to gather or assemble and advertise if it is believed that it would invite or encourage others to commit an illegal act.
Supreme Court Judges of USA through their jurisprudence have developed the Doctrine of Vagueness which says that a law is unconstitutional if a person of ordinary intelligence cannot determine what action is regulated and prohibited under the law. Viewed in the light of this principle, the definition of national security is vague and too broad. The definition encompasses a wide range of activities related to the basic rights of people in a democracy and it is difficult to determine exactly what is prohibited and who can be punished under the law. The ISOC can prohibit even peaceful gatherings of people.
Any expression of opinion which is contrary to the mainstream ideas can cause unrest in society - does that mean that such expression of opinion is a threat to national security and is to be prohibited? Not all unrest in society is inimical to peace and security. Exchange of ideas, debates help to strengthen a society and should be encouraged. If it results in tensions, the State has a duty to manage and control the tensions - but in fear of such probable tensions, it cannot throttle the debates itself through criminal sanctions.
4) The Draft Act also gives powers to the ISOC to arrest and carry out searches without warrant and on grounds of suspicion. Under the existing criminal laws, the police already have powers to conduct searches and arrests without warrant in cases which necessitate immediate action. There is no need for special laws such as this.
5) Under Article 31, if an inquiry officer perceives that a person has committed a wrongdoing because of been ‘misguided' or ‘misinformed', but such wrongdoing is not serious enough for a case to be filed against that person, ISOC can direct that person to attend ‘training courses' for up to six months.
Given that the definition of acts against national security is so broad, and given that national security is also equated with ‘Thainess' and maintaining ‘Thai pride', a provision like this will give unlimited power to officers to deal with issues according to their own notions of ‘Thai pride'. Such provisions that authorizes officers to send people for correctional behavior is reminiscent of the Nazi laws where the fascist regime was trying to impose their notion of ‘Aryan pride' on all the people.
6) And last but not the least, Article 37, gives immunity to officers from civil and criminal violations or disciplinary actions if they were performing their actions honestly - thus in effect giving immunity to them
Thus the ISOC would have unlimited powers to determine which act is to be prohibited and punished in the name of national security. They would also enjoy immunity from any kind of accountability mechanism creating a climate of impunity. Such unbridled powers would only result in the creation of a police state eroding the basic values of a democracy. Thailand, today is in a political crisis and to come out of it, it needs to strengthen its democratic structures of governance and not create another undemocratic, totalitarian power centre. We call for all related bodies to act appropriately so that such a draft bill is not enacted into a law.
3 July 2007 Human Rights Organizations Network
1.Asian Institute for Human Rights
2.Campaign Committee for Human Rights (CCHR)
3.Working Group for Justice and Peace (WGJP)
4.Thai Coalition for the Protection of Human Rights Defenders (HRD-TH)
5.Young People for Democracy Movement, Thailand (YPD)
6.YPSEA-Thailand
7.Cross Cultural Foundation
8.Union for Civil Liberal (UCL)
9.The Third Way People Network
