State of emergency and the enjoyment of human rights in the time of pandemic in aseani

State of emergency and the enjoyment of human rights in the time of pandemic in aseani State of emergency and the enjoyment of human rights in the time of pandemic in aseani

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decree’, in order to ensure the protection of the population because of the spread of the COVID-19 virus, gatherings inside or outside the home no matter the number of people involved, with a few exceptions.’ In those circumstances, let’s take the following fictitious example only for purposes of illustration, i.e without arguing on the legitimacy of it: if a person were to be arrested by the police? and was subsequently prosecuted for having contravened this decree, it is possible to imagine that this person could potentially rely, in defense, on the freedom of association! by making an argument that would be based on the assertion that the State has infringed this constitutional freedom by restricting it excessively with its decree An important argument of the opposing party, the government, could have its source, as one can guess from the above, in the fact that if the freedom of association has been infringed, its restriction constitutes a reasonable limit in the present case considering the extreme danger represented by the scourge of the COVID-19 virus Still in the

same spirit, this restriction would then be justified, in such circumstances, in the

framework of a democratic society since it aims to protect the health of the entire population That being said, as stated by Marjun Parcasio, “[u]se of the Emergencies Act is still to be tested and it remains to be seen how any future government will operate within its provisions.”*

In addition to the consequences caused by the reliance on the Act, a pandemic could also impact on the consideration to be given to other legislations which may also have, in turn, an impact on fundamental rights and freedoms Indeed, in the context of a bail hearing, a judge could deem appropriate to consider COVID-19 in ' “The decree is a written regulatory decision that emanates from the executive power”, namely the government: Decrees, regulations and decisions of the Council of Ministers, Ministry of the

Executive Council, Government of Quebec’s website, see online:

http://www4.gouv.qc.ca/fr/Portail/citoyens/programme-service/Pages/Info aspx?sqctype=sujet&sqcid=854 [translated from French by Sébastien Lafrance]

® Government of Quebec’s website see online: http://www4.gouv.qc.ca/fr/Portail/citoyens/ programme-service/Pages/Info.aspx?sqctype=sujet&sqcid=854

https://www.quebec.ca/premier-ministre/actualites/detail/le-gouvernement-du-quebec-interdit- tout-rassemblement-interieur-ou-exterieur/

However, police forces had not « received any specific directions as to how apply this decree »: Tommy Chouinard, “Québec interdit “tout rassemblement intérieur ou extérieur” (“Quebec Forbids Any “Gathering Inside or Outside”), La Presse, March 21, 2020, see online:

https://www.lapresse.ca/covid-19/202003/21/01-5265834-quebec-interdit-tout-rassemblement- interieur-ou-exterieur.php [translated from French by Sébastien Lafrance]

‘ The Freedom of Association is guaranteed in Canada by section 2d) of the Charter; in the province of Quebec, itis guaranteed by section 3 of the Charter of Human Rights and Freedoms, COQLR c C-12; in Vietnam, it is guaranteed by section 25 of the Vietnam Constitution (2013) ° Marjun Parcasio, “The Evolution of the War Measures Act”, at page 35 in Robert Normey et al,

LawNow Magazine, 2019 43-3.

was

118 LAW ON THE STATE OF EMERGENCY - PHAP LUAT VE TINH TRANG KHAN CAP his or her decision to release or not an accused:! “the greatly elevated risk posed to detained inmates from the coronavirus, as compared to being at home on house arrest is a factor that must be considered the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able

to self-isolate at home.”

Further, in addition to the physical suffering caused by the COVID-19 virus, the voluntary or mandatory isolation called for by the fight against this virus is also a silent psychological evil experienced by many people on a daily basis In one of the classics of French literature, The Plague, Albert Camus described the daily life of the inhabitants of a city during an epidemic of plague, which struck that city and cut it off for some time from the rest of the world?:

Also, after some days, when it was clear that no one had the least hope of being able to leave our town, inquiries began to be made whether the return of people who had gone away before the outbreak would be permitted After some days’ consideration of the matter the authorities replied affirmatively They pointed out, however, that in no case would persons who returned be allowed to leave the town again; once here, they would have to stay, whatever happened

This isolation should not encourage anyone to take actions that jeopardize the instructions given by and the work of medical professionals, these health soldiers, these modern heroes, who fight tooth and nail for the survival of the human race as we know it The COVID-19 pandemic affects all of humanity Let’s keep in mind the ever-increasing number of victims who have lost their lives because of it This number should never become a banal statistic

* R.v.J.S., 2020 ONSC 1710, at paragraphs 18-19 2 Albert Camus, The Plague, 1947,

STATE OF EMERGENCY AND THE ENJOYMENT OF HUMAN RIGHTS IN THE TIME OF PANDEMIC IN ASEAN

Yuyun Wahyuningrum’

| INTRODUCTION

On 11 March 2020, the World Health Organization (WHO) declared Corona Virus Disease 2019 or COVID-19 outbreak as a global pandemic Although different countries have different responses to the pandemic, human contact restriction has been their common approach It is also the case in Southeast Asian countries

Measures, such as movement control, partial or total lockdowns, curfews, quarantine

and state of emergency were imposed, which have potential in challenging the implementation of international human rights law

In ASEAN, there are three member states applying state of emergency: Cambodia, The Philippines and Thailand as their approach to addressing COVID-19 pandemic Cambodia adopted a law on the state of emergency on 10 April 2020, while the Philippines Congress issued a Republic Act (RA) 11469 on 23 March 2020 declaring the national emergency due to COVID-19 and Thailand proclaimed a state of emergency by Emergency Decree on 26 March 2020

This paper aims to assess the practice of imposing the state of emergency in these three countries and analyse its implication to the enjoyment of human rights It goes by recognising that while many human rights can be restricted in the pursuit of a legitimate aim, such as public health, the principles of legality, necessity and proportionality should be first established

Through analysing the collected data obtained from the literatures, press releases of non-government organisations and news.coverage from February to May 2020, I argue that the imposition of the state of emergency in Cambodia, the Philippines and Thailand has impacted the implementation and enjoyment of human rights

to include freedom of movement, opinion and expression, association, peaceful

assembly, access to information, press freedom, right to work, right to education and right to freedom of religion

Representative of Indonesia to the ASEAN Intergovernmental Commission on Human Rights,

Indonesia

In paragraphs to follow, this paper will discuss the concept of the state of emergency and analyse the implication of state emergency in addressing COVID-19 in the three ASEAN countries The conclusion is the last section

The State, State of Emergency and Human Rights

More and more States practice state of emergency in dealing with catastrophe situation as it was evidenced in the case of Arab Spring and now with the COVID-19, Although imposing a state of emergency is justifiable, but this policy option is perceived as the most serious challenge to the respect, protect and fulfil human rights

The term ‘State of emergency’ has immediately shaped a dichotomy of normality and exception, which requires different treatment on the enjoyment of human rights Taking ‘state of emergency’ generates a category that gives legitimacy to the government to limit human rights as a permissible exception The practice of state of emergency often comes with different names such as ‘states of exception’, ‘states of siege’, or ‘martial law’

Sheeran (2013: 492) has also argued that the state of emergency generates a divided approach to balance the interests of societal goals and individual rights The term conveys the message that in the case of emergency situation, public interest is superior than individual rights By qualifying a situation to be in emergency state based on urgency and scale, Lazar (2009: 5) argued that the term ‘state of emergency’ shifts the way we perceive the relationship between principles of justice and principles

of order and between formal and informal constraints on power

Lazar (2009: 7) explained that a situation can be considered as urgent if it poses an instant threat which needs immediate intervention for the purpose of its elimination and mitigation But she also mindful that the idea of urgency does not always entail temporary containment because something urgent can also remain for some times Whereas the scale category of emergency refers to a range of people likely to be affected by the event

Very often, situation of disturbance or disruption of normalcy such as armed conflict, terrorist emergency, natural disaster emergency, humanitarian emergency or public

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health crisis are considered as a not-normal situation that requires exceptional treatment to mitigate its negative effect According to the Human Rights Committee, state of emergency can only be declared by the State if it meets two fundamental conditions, as explained in its General Comment No 29 of 2011 (CCPR/C/21/Rev.1/Add.11)

First, whether the situation amounts to a public emergency that threatens the

life of the nation and its existence and second, whether the measures are severely necessary to address the situation It is in this kind of situation that derogation of international human rights obligations can be justified Article 4.1 of ICCPR provides a window for the State party to derogates some rights in an exceptional manner, temporary in nature and strictly required by the situation as clarified by the Human Rights Committee in the General Comment No 29 of 2011 Furthermore, Article 12.3 of the International Covenant on Civil and Political Rights (ICCPR) states protecting public health, public order and national security are legitimate reasons to restrict human rights but it should be done lawfully

Nevertheless, some rights cannot be derogated in all circumstances, such as the right to life (Article 6), the right to be free from torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent (Article 7), the right to be free slavery, slave-trade and servitude (Article 8, para 1 and 2), the right to be free from imprisonment because of inability to fulfil a contractual obligation (Article 11), the right under the principle of legality in the field of criminal law (Article 15), the right to recognition everywhere as a person before the law (Article 16), and the right to freedom of religion (Article 18) Furthermore, the principles of non-discrimination on the basis of race, colour, sex, language, religion or social origin must remain upheld at all times

Although emergency power might be justifiable, its requirement is very tight At least, State must meet the principles of legality, necessity and proportionality and rule of law must be respected all the times regardless of the states of emergency Procedurally, the State must officially proclaim a state of emergency to the public and provide a clear explanation of the reasons The state must make notification it takes further measures, such as extending the duration of a state of emergency Furthermore, State also must notify the treaty depositary and therefore in practice the other state parties of its public emergency and measures of derogating human rights

States of Emergency in the time of Pandemic COVID-19 in ASEAN

Among ten ASEAN member states, only Cambodia, the Philippines and Thailand decided to take tough policy in dealing with COVID-19 Cambodia is the State Party to ICCPR in 1992, the Philippines in 1986 and Thailand in 1996.

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Cambodia

The Senate of Cambodia passed Law on National Administration in the State of Emergency (also known as the ‘state of emergency’ law) on 30 April 2020 to contain the spread of COVID-19 The law - that is consisted of series of measures, mandates and procedures to curb the virus rapidly - was drafted after the country has seen a growing cases of COVID-19 Cambodian Prime Minister Samdech Techo Hun Sen argued that declaring a state of emergency is consistent with Article 2 of the Cambodian Constitution on the situation when the country faces dangers such as war, foreign invasion, and public health concerns caused by pandemics.!

The Law provides the government with ‘extraordinary powers’ in the time of emergency for the period of three months Article 5 of the Law provides provisions

that enable government to (a) restrict freedom of movement, freedom of association

or gathering, right work, (b) impose necessary measures to quarantine people in the event of imminent danger to public health caused by a pandemic, relocate people, mobilise and revoke all possessions or services, fix prices of necessary goods and services, close any public or private spaces, monitor, observe and gather information from all telecommunication mediums, using any means necessary that deemed necessary in accordance to the state of emergency, (c) ban the distribution of information that could generate panic, unrest, or that can negatively impact national security, or that can cause confusion

Theimplementation of these measures are nation-wide in coverage and if needed, the government can set up a mechanism, mobilise certain government authority or armed forces to ensure the compliance of the mentioned measures According to this law, those failing to observe its proscribed measures can be fined from C$700 to $3,500, and/or given a jail term from one-to-ten years.”

Rights groups in Cambodia criticised the government of using the pandemic to compromise human rights and silence free speech, peaceful assembly, association and impinge on access to information Rhona Smith, the Special Rapporteur on the situation of human rights in Cambodia said that the “broadly worded language on the protection of national security and public order, ostensibly aimed at addressing COVID-19, can potentially be used to infringe on the right to privacy and unnecessarily restrict freedoms of expression, association and peaceful assembly.”

1 Please see hitps://www.thestar.com.my/news/regional/2020/04/19/cambodia039s-senate-passes-draft- bill-on-state-of-emergency-amid-covid-19-pandemic

2 Please see —_https://Awww.asiapacific.ca/publication/cambodias-state-emergency-law-and-fight- against-covid-19

3 Please see https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx? NewsID =25801& LangID=E

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The spoke person of the government, Phay Siphan, defended the Law on state of emergency and said “No NGOs, be it local or international, can interfere in Cambodia's internal affairs and its enforcement of the Constitution”! Cambodian Human Rights Committee (CHRC) spokesperson Chin Malin further argued “The ICCPR [International Covenant‘on Civil and Political Rights] and the Universal Declaration of Human Rights provide for restrictions on citizens’ rights and freedom in a state of emergency But the restrictions must be determined by law for the sake of public and common interests.” He also said that the implementation of the Law will be reviewed and monitored by the National Assembly and Senate

Between January and April 2020, Human Rights Watch and Lichado documented that there were 30 people arrested, including 12 linked to the dissolved Cambodian National Rescue Party (CNRP), on charges of spreading “fake news” and other offenses since the global outbreak of the pandemic.? Fourteen people remain in pretrial detention, apparently on baseless charges, including incitement, conspiracy, incitement of military personnel to disobedience, and spreading false information or “fake news.”* Among those arrested in addition to the opposition activists was a journalist quoting a speech by Prime Minister Hun Sen, and ordinary Cambodians who criticised the government's response to the Covid-19 pandemic

The law on state of emergency has compromise press freedom in Cambodia Sovann Rithy, TVFB founder and online reporter was arrested in April for posting the speech of Prime Minister Hun Sen that admitted the government was unable to help informal workers and suggested that motorcycle taxi drivers sell their vehicles to buy rice in Facebook.’ He was charged with incitement

National Police spokesperson Chhay Kim Khoeun said that since Covid-19, 50 people had been arrested, which 26 of them were held according to arrest warrants and are in custody, while 24 were allowed to return home after having been educated * Please see https://www.phnompenhpost.con/national politics/ un-concerns-unfounded? cí chỉ jschl tk =d3b0a9f79e3e24ecb5897ce245a 04b5823ac874b -15914475920-AaNHV LitScMz6cUS6IEXNKV2zzZBB3c4IP_-NDFMOSy5kR- Poct9U2LLIMa2C2HSZ2wHOFIV_ KWULxnRz2y2l6ol8bsJvEZ9IMASp XGtjAnxSGgjxFQiFO2hBkwDEGARy8YjGYxSKm_cKWd- gS3Nvil4SKB8R-FmP}]w_IBNfQGY-ez0Pk86LjxQ6_i¥7Y]zIWJYxQSwBts5jog44alxcXkrUV3jev 9hKI4f-dX9grVjMUDTdZAbUrO7ht6ervOfAjYDmkX1038pgUsC6BVbs1LhuZsQOKMEMX43 wÐ29qjVs3FpKmkSXa6ó9wGzU _J7J2h2U1ESStGHCg3]Ig92xn1Z6WQ

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One was the 14-year-old girl who was released after education.’ They, who are also members of the former opposition party, were charged with inciting a felony with the intention to implement a plot against the government, that can create social chaos, fear and insecurity.’ Cambodia has not yet submitted a declaration to treaty depository informing the state of emergency

Philippines

One of the ordinance powers of the President of the Philippines is to declare certain situation of the state such as state of calamity or martial law through a Proclamation According to 1987 Administrative Code, proclamation means the “acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend” (1987: Book III, Title I, Chapter IL, Section 4)

Quoting Article II of the Philippines Constitution regarding the State duty to protect and promote the right to health of the people, President Rodrigo Duterte declared the country was in a state of calamity by Proclamation number 922 on 16 March 2020 The state of calamity is an alternative term to reflect a state of emergency to convey a situation where the state is facing a disastrous event marked by great loss and deep distress The term ‘calamity’ refers to catastrophic condition that caused natural disaster or economic-related loss

Proclamation 929 justified the reason behind declaring the Philippines is ina state of calamity due to the rise of infected cases of COVID-19 despite the interventions from the Government State of emergency, as stated in the Proclamation 929, will take place for six months with two objectives: (a) to utilise the Quick Response Funds for Disaster Preparedness and Responses efforts to contain the spread of COVID-19 and (b) to continue the basic services for the affected population

This Proclamation 929 facilitates all government agencies and local government units (LGU) to provide comprehensive assistance and cooperation in mobilising the necessary resources to address the threats of COVID-19 and enables all enforcement agencies, with the support of the Armed Forces of the Philippines (AFP), to take any measures to ensure peace and order in affected areas The Proclamation also demands that Health secretary to issue guidelines governing the implementation of the Enhanced Community Quarantine

Furthermore, on 23 March 2020, the Philippines Congress approved Republic Act (RA) 11469 declaring the national emergency due to COVID-19 and authorise the 1 Please see https://Awww.phnompenhpost.com/national/ govt-refutes-rights-repression-claim 2 idem

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President to launch a massive aid programme related to end the pandemic, including mass testing, support for the front-liners and cash transfers for the vulnerable.! The law enables the government to punish people disobeying quarantine orders and spreading “false information” about the outbreak Nevertheless, the law also incorporates a safeguard against possible abuse of power of the President from taking over the private companies if the pandemic worsened.?

The imposition of Proclamation 929 has impacted to the enjoyment of freedom of movement of the population There have been media reports that the Philippines National Police (PNP) arrested people without warrant, especially those who were on the street during the curfew.’ This situation was deteriorated with the adoption of RA 11469 As per 30 March 2020, PNP data showed that over 17,000 people have been arrested across the Philippines for coronavirus lockdown-related violations On 1 April 2020, President Rodrigo Duterte ordered the police and the military to shoot violators of the enhanced community quarantine if they are unruly and prove to be a threat to law enforcers’ lives

Activists were also harassed for doing their voluntary works Human Rights Watch documented that seven activists were arrested because they distributed food aid in Bulacan province, North Manila on 19 April 2020.6 They were further charged by inciting to commit sedition after newspapers and magazines with anti-government content in their vehicle

RA 11469 also impacted on the enjoyment of freedom of opinion and expression Maria Victoria Beltran, an actress and screenwriter was arrested without warrant on 19 April 2020 for describing Cebu City as being the epicentre of COVID-19 on Facebook.’ Furthermore, on early May 2020, ABS-CBN, a country’s largest television broadcaster, was forced to shut down in the time when people need unbiased reporting on COVID-19 outbreak.®

' Please see https://www.official gazette, gov ph/2020/03/24/republic-act-no-11469/

2 Please see https://www.scmp.com/news/asia/southeast-asia/article/3076790/philippine- congress-approves-national-emergency

Please see http://shapesea.com/op-ed/covid-19/protecting-rights-while-protecting-lives-does- human-rights-give-way-to-a-state-of-emergency/

Please see https://www.rappler.com/nation/256369-lockdown-violators-arrested-philippines- march-2020

5 Please see https:/Avww.cnnphilippines.com/news/2020/4/1/Rodrigo-Duterte-police-military- shoot-unruly-quarantine-violators.html

° Please see https://www.hrw.org/news/2020/04/22/philippine-activists-charged-sedition-fake-news Please see —_https:/Avww.rappler.com/nation/258398-cebu-film-writer-arrested-coronavirus- facebook-post-sitio-zapatera

® Please see https://www.cnn.ph/news/2020/5/5/ABS-CBN-off-air-NTC html

them survived from COVID-19 outbreak in Quezon city.!

There has been no report regarding the shutdown of internet by the time this paper is written, nor that the Philippines introduces tracing app to track down the infected people and no report of the closure of access for asylum seekers to seek refuge The Philippines has not yet submitted a declaration to treaty depository informing the state of emergency

Thaifand

On 25 March 2020, the Cabinet approved the Emergency Decree on Public Administration in Emergency Situation to declare Thailand ina state of emergency in order to control the spread of the COVID-19 pandemic until 30 April 2020 It banned travelling to and from Thailand via land, sea and air, though certain exceptions have been made for goods transportation, diplomatic missions and foreigners with work permits Under the emergency decree, hoarding of food, drinking water and medical supplies will be punished?

The Decree also bars reporting or spreading of information regarding COVID-19 which is untrue and may cause public fear, as well as deliberate distortion of information which causes misunderstanding and hence affects peace and order or public morals.”* Furthermore, the Decree enables the authorities to order journalists and media groups to “correct” reports deemed incorrect, and allows for authorities to pursue charges against journalists under the Computer Crimes Act, which allows for five-year prison penalties for violations

It was extended until 31 May 2020 based on the proposal from the National Security Council with curfew, no interprovincial travel, no big gathering and the guidelines for easing the lockdown.‘ The Cross-Cultural Foundation (CrCF) in Thailand argued that the impact of the state of emergency to the enjoyment of human rights has been huge In its press release date on 19 April 2020, CrCF reported that the restriction on movement has impacted to the right to work, right to education, right to livelihood and peaceful assembly.’ Restriction of movement prevents people to leave their houses for work which in turn lead to the closure of many businesses

1 Please see https://www.cnnphilippines.com/news/2020/4/1/quezon-city-protesters-arrested-.html 2 Please see https:/Avww.thestar.com.my/news/regional/2020/03/25/thailand-declares-state-of-

emergency-with-tough-new-restrictions

3 Please see https://cpj.org/2020/03/thailand-declares-state-of-emergency-imposes-press/

‘ Please see https://www.bangkokpost.com/thailand/general/1909360/state-of-emergency-extended 5 Email received by the author on 21 April 2020