State Power and Human Rights in the State of Emergency: the Case of Covid-19 Pandemic in Thailand

Abstract

The covid-19 pandemic has caused the governments of many countries to declare a state of emergency and utilize special measures to deal with the spread of the disease. Declaring a state of emergency increases the power of the executive branch of the government, which is a power not used at ordinary times. This essentially adversely affect the rights and freedom and human rights of the people.

Theoretically, some legal theorists hold the view that it is not necessary to take human rights principles into account when using the emergency measures, while several other legal theorists and practitioners hold the view that the emergency power of the state should still comply with the human rights principles, especially those specified in the International Covenant on Civil and Political Rights (ICCPR) and the principles explaining the international covenant – that is, the emergency power of the state still needs to be bound to the principles of necessity, proportionality, non-discrimination, and with legal justification.

This article explores the Thai government’s exercise of the power under the state of emergency during the Covid-19 pandemic by analyzing the laws and measures enforced by the state, using the viewpoint regarding the use of state power during state of emergency and international human rights principles, and with the Siracusa Principles and the guideline issued by the Office of the United Nations High Commissioner for Human Rights (OHCHR) which help interpret ICCPR. The article, in the end, shows that the exercise of state power and the enforcement of the measures for the control of Covid-19 in Thailand have adversely affected human rights and freedom of the people and are contrary to the principles under international human rights law, both in terms of the content of the law and the enforcement thereof. As such, this article proposes that Thailand should amend its emergency law in order to comply with the internationally accepted principles. Additionally, due to Thailand being a member state of ICCPR, this article proposes that the Thai government has the duty to respect human rights protected under the international covenant, and this could be done by ending the ongoing violation of human rights and meanwhile increase the protection and promotion of the rights and freedom in conformity with its international law obligations.