Permanent State of Exception under the State of Emergency during the Covid – 19 Pandemic

Abstract

This article aims to study the concept of the state of exception present in the Thai legal system, particularly the law of state of emergency, which are circumstances where the enforcement of certain laws or provisions is suspended, including the temporary suspension of rights and freedoms, leading to the enforcement of another system of laws to augment the power of the state or security sectors in resolving crises until the situation subsides. In the past, the state of exception has been discussed for its potential impacts on the legal system and the rights and freedoms of citizens. A significant issue with the state of exception is the emergence of a fictitious state of exception, leading to a permanent state of exception. This allows the state or security sectors to suspend the enforcement of certain laws or provisions, including the suspension of rights and freedoms, for an extended period, effectively rendering it permanent. When considering the emergency laws in Thailand, particularly during the declaration of an emergency situation due to the COVID-19 pandemic, the emergency declaration lasted for an extended period, even as the situation gradually subsided and vaccines became widely available to prevent the spread of the disease. During this time, the state could have exercised its powers under ordinary laws but chose to continue the emergency declaration for a prolonged period, leading to criticism that such a declaration could establish a dictatorship, as evidenced by the violation of citizens' rights and freedoms during the COVID-19 emergency, such as media control, banning and dispersing gatherings. This case demonstrates a permanent emergency declaration or a permanent state of exception, necessitating legal measures or mechanisms to prevent such distortions of power during emergencies. Specifically, legal mechanisms should be established to monitor and oversee the declaration of emergencies, the exercise of power during emergencies, the extension of emergency periods, and the termination of emergencies, as well as holding the state and its officials accountable for any harm caused to citizens by such actions. This approach is crucial to prevent emergency situations or states of exception from becoming permanent and infringing upon citizens' rights and freedoms and the principles of the democratic constitutional state. Furthermore, allowing the legislative and judicial branches to exercise political and legal oversight would serve as a mechanism to ensure the ultimate protection of citizens' rights and freedoms and the principles of the rule of law and democracy.