Thai Lawyers for Human Rights’ Fact Sheet
The consequences of revocation of Martial Law and the Order of the Head of National Council for Peace and Order (NCPO) No. 3/2558 (2015)
- Martial Law is still imposed in areas which have been under Martial Law prior to 20 May 2015 for instance the southern border provinces; Pattani, Yala, Narathiwat, 4 districts in Songkhla, and other border provinces
- Civilians are still subject to military court jurisdictions in certain crimes according to the NCPO’s Announcements No. 37/2014, 38/2014 and 50/2014
- Military courts in a normal time (no longer under Martial Law) function with right to appeal to higher military courts. This is applicable to an offence committed from 1 April 2015 onward. Those cases occurred between 25 May 2014 to 31 March 2015 are not entitled to appeal according to Section 61 of the Military Court Act B.E. 2498 (1955)
- Under Martial Law, military personnel has powers to detain an individual up to 7 days (Section 15 bis of Martial Law). Upon the 7-day period, if a detainee is to be charged with criminal offences, he must be submitted to police investigation. However, under this new Order, “Peace and Order Maintenance Officers” (- POM Officers: military personnel ranking with second Lieutenant or higher, appointed by the NCPO to execute this Order) are granted to act as police investigators or inquiry officers in cases related to offences against monarchy, offences against national security, offences related to ammunition, weapons and arms, and offences as provided by NCPO’s Announcements and Orders. [No other security laws explicitly give powers to military to act as police investigators or inquiry officers under criminal procedure code]
- In cases related to offences against monarchy, offences against national security, offences related to ammunition, weapons and arms, and offences as provided by NCPO’s Announcements and Orders, the Peace and Order Maintenance Officers, who are military personnel, have powers to arrest and detain a person, and carry out investigation process which includes concluding investigation files and submitting to military prosecutor for indictment. The case will be indicted by military prosecutor and judged by military courts
- The Peace and Order Maintenance Officers have powers to detain a person not exceeding to 7 days in a premise that is not detention facilities (police station, remand centers, detention centers and prisons) and such person shall not be treated as an alleged offender in criminal cases. This is in the same manner as the practice of military personnel under Martial Law that a detainee is not yet an alleged offender, therefore, he is not entitled to the rights of an alleged offender under criminal procedural law in that 7 day period (ie., access to lawyers, families and relatives, etc).
- In case of detention of a person not more than 7 days due to offences in violation of NCPO’s Announcements and Orders, the POM Officers have powers to prescribe condition of release; (1) to prohibit an entry to any specified areas (2) to execute a bond with security for keeping the peace (3) to restraint in an institution of treatment (4) to prohibit a carry out of certain occupations (5) to prohibit a travel outside of the country unless a permission is granted and (6) to freeze financial transactions
- The Peace and Order Maintenance Officers have powers to summon an individual to report him/herself to authorities, arrest, detain, search, seize and confiscate any properties, carry out other actions assigned by the NCPO, and execute in justice system as an investigators/inquiry officers in the cases related to abovementioned offences.
- The Peace and Order Maintenance Officers have powers to order a ban on presenting news, selling, distributing any books, printings, or other media materials which contain messages/statements that may cause fear among public or intentionally distorting information that may cause misunderstanding which would affect national security or peace and order.
- A political gathering of more than 5 persons shall be punished with no more than 6-month imprisonment and/or fined with 10,000 Baht. A wrongdoer who voluntarily attends a training with a period of more than 7 days, conducted by the Peace and Order Maintenance Officers, and the officers order a release with or without conditions, it shall be considered that the criminal case is terminated. (This security-personnel-run- training practice is similar to a training under Section 21 of Internal Security Act (ISA). Meanwhile the training under ISA includes a certain level of judicial oversight of the practice, this Order authorizes powers to perform a 7-day training practice to the POM Officers who are military)
- Any actions under this Order shall not be subject to the Law on Administrative Procedures and shall not be brought before the Administrative Courts.
- Article 44 of the Interim Constitution 2014 only gives the powers to the Head of NCPO. However, this Order under Article 44 has authorized powers to other NCPO members and military personnel, which extends implementation of Article 44’s sweeping powers in practice.
- The Peace and Order Maintenance Officers and the Assistants empowered under this Order shall not be held responsible in civil, criminal or disciplinary liability for their performance of duties to suppress or prevent any unlawful acts is carried out in good faith, without discrimination, and does not exceed the proportionality or necessity.
- Although this Order does not prejudice the right of injured person to claim damages from public sectors pursuant to the law on liability for wrongful acts of officials, in fact Article 44 of the Interim Constitution provides that any orders, acts or performance according to orders given by the Head of NCPO is deemed to be legal, constitutional and conclusive.
- In conclusion, the Order of the Head of NCPO No. 3/2015 maintains the powers under Martial Law supplementing with practice of training run by security officials in similar to the ISA while it provides an immunity clause for officials from liability in the same manner with the Emergency Decree on Public Administration in State of Emergency (2005). Further, it increases powers to investigate crimes according to criminal procedural law to military and security personnel. All actions and performances carried out in accordance with this Order will be legal, constitutional and conclusive according to Article 44 of the Interim Constitution