1.  Thailand is a unitary and highly centralised kingdom. Since the downfall of absolutism in 1932, the country has oscillated between (a) an authoritarian regime by the military junta or the junta’s proxy professing its allegiance to the monarchy and (b) an electoral regime with varying degrees of democratic quality.¹ Thailand’s first constitution was drafted by the People’s Party, a group of mid-ranking military officers and bureaucrats who overthrew the absolutist regime in 1932. However, due to an internal rift between the civilian moderates and the military fascists within the Party, the royalist conservatives successfully restored royal hegemony under the guise of the Democratic Regime with the King as Head of State (DRKH) after the 1947 putsch. In contrast to constitutional monarchy, the DRKH is a form of ‘tutelage democracy with extremely centralised administration under the patronage and tutelage of royalist-conservative elites and the military’.² For more than seventy years, purported threats to the throne have been invoked to justify the impositions of 13 royalist coups, leading to the abolition and re-making of constitutions, both interim and permanent. Due to the immense popularity and moral leadership of King Bhumibol (1946–2016), the monarchy could recover from its nadir, and has, since the 1970s, become ‘an almost unchallenged source of legitimacy’ and ‘object of legitimation’, thus legitimising the role of the military as its guardian.³ The country’s twentieth and current constitution was initiated by the junta staging a coup to ensure post-Bhumibol royal hegemony in 2014. It was approved through a referendum widely regarded as rigged in 2016, and later endorsed by King Vajiralongkorn (2016–present) in 2017.⁴ The current constitution seeks to greatly curtail the space for electoral politics, as discussed here and in Part III.A below.

2.  Thailand has a bicameral legislature, composed of two chambers—the House of Representatives and the Senate. The House of Representatives comprises 500 members—375 of whom are directly elected from each constituency, with the rest chosen through party-list proportional representation. They sit for a term of four years.⁵ In contrast, the Senate, made up of 200 Senators who hold office for six years, is supposed to be a non-partisan body of experienced people who aid the work of the Members of Parliament (MPs). However, a special provision in the 2017 Constitution sets a rule that the first Senate for the first 6 years following the 2017 Constitution are 250 senators who are appointed by the junta from among senior military officers, including the army chief, veteran bureaucrats, and some royalist-conservative supporters.⁶ They are said to be the junta’s sympathisers.⁷ Like many other countries, age requirements are lower for MPs than Senators (25 years old and 40 years old respectively).⁸ Unlike in the systems where the upper house is subservient to its lower counterpart, Thailand’s symmetrical bicameralism enables the Thai Senate to share the power of selecting the country’s Prime Minister (PM) and to supervise the PM’s Cabinet with the House of Representatives.⁹ As for legislative power, a bill could only be initiated in the House of Representatives and the Senate’s veto can be overridden by the House.

3.  The PM is the Head of Government, selected through an open vote by members of both Houses of Parliament for a four-year term.¹⁰ The PM appoints and dismisses ministers. Normally, the PM must be an MP and is also usually the leader of the largest party. However, the 2017 Constitution introduced a different mechanism. Prior to a general election, every contending party is required to propose the names of three candidates for PM.¹¹ The Parliament must then select the PM only from this pool of candidates. The mechanism is said to increase transparency and avoid secret deals but it also makes political change inflexible. The PM and the cabinet lead the administrative branch, therefore possessing a wide variety of powers, including the power to propose an emergency decree as well as to determine public expenditure and steer public administration.¹²

4.  The 2017 Constitution regulates types of legislation. The first two types—an Organic Constitutional Act (OCA) and an Act of Parliament—are determined and passed by Parliament. An exhaustive list of OCA is specified by the 2017 Constitution.¹³ The former deals with matters related to the state’s basic organizational structure, such as the arrangement of a general election, the Constitutional Court’s procedural rules, and the roles of the National Anti-Corruption Commission.¹⁴ The latter, by contrast, is a general primary law issued by Parliament.¹⁵ In the face of public calamity or an imminent threat to national security, the economy, public safety, and the throne, the 2017 Constitution also bestows upon the Government the power to pass emergency decrees, the status of which is equivalent to an Act of Parliament.¹⁶ Upon the next convening, the Parliament will vote on whether to ratify an emergency decree. But the Parliament can only vote upon the entire decree. The Parliament cannot amend the decree. If the Parliament rejects the decree, the law lapses but this would not affect its previous application. An emergency decree can impose sanctions.

5.  Thailand is divided into 76 provinces and two special administrative areas, Bangkok and Pattaya. As a highly centralised state, governors of all 76 provinces are appointed by the Ministry of Interior. By contrast, the governors of Bangkok and Pattaya are directly elected by local citizens. Powers to determine several issues such as public health, public procurement, and the issuance of hotel and theatre licenses are delegated to both types of governors. Within each province, three forms of decentralised local authorities (‘DLA’) are established, namely municipalities, the Provincial Administration Organization, and the Tambon (sub-district) Administration Organization. These bodies are responsible for promoting, amongst other things, local sanitation, education, art, and recreation, and are supervised by the provincial governor. ¹⁷

6.  In January 2020, the first positive case of Covid-19 was reported in Thailand, a Chinese tourist travelling from Wuhan to Bangkok.¹⁸ The Government decided to handle the pandemic with existing laws without changing the basic constitutional arrangements. Choosing to tackle the pandemic through a centralised approach, the Government invoked measures enshrined in the Communicable Diseases Act 2015¹⁹ in combination with emergency powers under the 2005 Decree on Public Administration in State of Emergency (‘2005 Decree’).²⁰ A nationwide declaration of emergency nevertheless resulted in a socio-economic downturn, in particular, job losses and liquidations, provoking a series of anti-Government protests, including unprecedented calls for reform of the country’s powerful and affluent monarchy.²¹

7.  According to the Thai Constitution, a person can exercise their constitutional rights insofar as such an act does not imperil national security, public order, or good morals. Nor can it impinge upon the rights and liberties of others.²² The state can only deprive a person of their rights in the form of an OCA, an Act of Parliament, or an emergency decree.²³

8.  Section 47 guarantees the rights of Thais to receive public health services from the state. In particular, a person has the right to protection and treatment of dangerous communicable diseases by the state free of charge.²⁴ Meanwhile, the state has the constitutional duty to provide efficient universal health care.²⁵

9.  In the face of public calamity, including public health crises, the Constitution allows the Cabinet to advise the King to issue an emergency decree restricting constitutional rights and liberties. The Cabinet is under a duty to submit such a decree to Parliament in its subsequent sitting for approval as soon as possible.²⁶

10.  In response to the Covid-19 pandemic, the Thai Government chose not to promulgate a new emergency decree, rather it resorted to the standing 2005 Decree. By virtue of the 2005 Decree, the PM may declare an emergency situation for no more than 90 days. In general, an emergency situation automatically expires within 90 days from the date of its issuance. However, the PM may call for its extension for an additional 90 days simply with the approval of their cabinet. The declaration authorizes the PM to consolidate power from a number of acts within themselves. He may bypass any laws and regulations with impunity. Prayuth declared a three-month state of emergency nationwide on 26 March 2020.²⁷ As of August 2021, the Cabinet has extended the declaration indefinitely with no end in sight.

11.  The declaration of a state of emergency does not lead to the suspension of parliamentary sittings, nor any restriction on access to justice. Civilian government rather than the military also takes the leading role in dealing with an exigency.²⁸

12.  Thailand is party to the International Covenant on Civil and Political Rights (ICCPR). On 5 June 2020, it communicated to the Secretary-General of the United Nations its intention to derogate from the ICCPR’s obligation to ensure the right to the freedom of movement under Article 12 ICCPR. However, in reality, emergency powers invoked by the Government also infringe upon other rights and liberties, in particular, the right to freedom of assembly and the right to homecoming.²⁹ Though the Government does not directly cite international regulations made by the World Health Organization (WHO) in any of the emergency regulations issued under the 2005 Decree, it normally refers to the WHO’s reports and statistics to legitimise its policy and response plan.³⁰

13.  No new Act of Parliament has been promulgated in response specifically to Covid-19. The Government has relied largely upon pre-existing law—the Communicable Diseases Act 2015 (‘CDA’). On 1 March 2020, the Public Health Minister issued a Ministry Declaration designating Covid-19 as ‘a dangerous communicable disease’ under Section 6 of the CDA. The main provisions employed by the Government are Sections 31, 34, and 36 of the CDA. According to Section 31 of the CDA, proprietors or persons in charge of residential premises are required to speedily notify a communicable disease control officer of any positive or suspected coronavirus cases. Section 34 empowers a communicable disease control officer to designate an isolation or quarantine place for individuals confirmed as infected and those suspected of being infected. Lastly, the CDA advocates a delegated response to the outbreak. Section 35 of the CDA allows governors (provincial, Bangkok, and Pattaya) to order closures of and restrict access to several public places, notably theatres, markets, schools, and universities. However, such discretionary powers entail divergent practices amongst provincial governors. While some governors virulently imposed measures that impinged upon constitutional rights, such as ordering a ban on travel without a permit, others refrained from wielding such power.³¹ Put simply, accordingly, the delegated approach is seen to have resulted in a ‘lack of coherence and coordination on the part of provincial government.’³² Against such divergent practices, the coup-leader-turned-premier Prayuth Chan-ocha decided to impose a ‘state of emergency’ nationwide on 26 March 2020, allowing him to consolidate emergency commanding authorities.³³ However, this more authoritarian move did not entail an effective response, and has, in fact, bred more social turbulence (see Part IV below). ³⁴ Against such an authoritarian move, opposition parties submitted a no-confidence motion on 25 January 2021. Yet, later in February 2021, the PM marginally succeeded in surviving a no-confidence vote.

14.  The Government has been reportedly working on a new and more comprehensive CDA to replace the 2005 Decree. However, this new draft is yet to be introduced into the Cabinet to be approved for Parliament’s consideration.

15.  In general, oversight institutions were significantly weakened by the 2014 coup. The junta, known as the National Council for Peace and Order (NCPO), has ruled the country for six years, wielding authoritarian power in the absence of strong accountability.³⁵ The National Legislative Assembly (NLA), which was supposed to provide a check upon the NCPO’s exercise of power, was appointed by the NCPO itself.³⁶ The NLA was thus under the total control of the NCPO.³⁷ More importantly, the NCPO appointed members of watchdog agencies, including the Constitutional Court and the Senate, which were supposed to be independent according to the 2017 Constitution. As a result, the oversight bodies were inclined to defer to the Government’s decisions.³⁸ After the 2019 election, which reinstated the junta leader, Prayuth Chan-ocha, as the PM, the situation remained unchanged.³⁹ Now with a majority in Parliament, the Parliament refused to scrutinize Prayuth’s performance in the Covid-19 crisis.

16.  From February to March 2020, many commentators and the media argued that the government’s response to Covid-19 was confusing and ineffective.⁴⁰ Cases were rising but state agencies failed to work in unison. Therefore, the PM declared a state of emergency by virtue of the 2005 Decree, enabling central government to take a leading role in responding to the pandemic. The 2005 Decree bestows upon the PM the authority to extend a state of emergency without parliamentary approval. As the head of command, the PM is bestowed with extensive and broad discretionary authority to issue regulations to resolve an emergency situation.⁴¹ The presence of an ouster clause, furthermore, prevents these regulations from being reviewed by the Administrative Court.⁴²

17.  The 2005 Decree had originally been promulgated in response to the violent insurgency in the Deep South region of Thailand, where the ethnoreligious conflict has already claimed thousands of lives since 2004. The default national security law was the Martial Law,⁴³ which granted a commander of an armed force unlimited power over the designated area, but the 2005 Decree was in effect the civilian version of this Martial Law as it granted the same power to the civilian Prime Minister.

18.  Between March 2020 and August 2021, 30 Covid-19 regulations have been issued under the 2005 Decree. The first regulation, Regulation no. 1, imposed measures to prevent widespread transmission, including zoning, closure of facilities and services, a ban on social gatherings, and monitoring international and internal travel.⁴⁴ Subsequent regulations relaxed and reinstated these measures, depending on the situation. There is no sunset provision so a regulation would always be in effect until it is amended by further regulation.

19.  A regulation covering international travel restrictions was challenged unsuccessfully in the Administrative Court (see Part IV.A.2 below).

20.  Apart from formalised and binding legal instruments, a breach of which would entail a criminal charge, the Government also issued a non-binding recommendation. Often, within the same regulation, the government issues law and recommendations for different measures. The distinction between law and guidance is, therefore, unclear. Regulation no.17 urges all Thais to install two mobile applications designed to track infected individuals—Mor Chana (Doctor wins) and Thai Chana (Thai wins).⁴⁵ However, given that their installation requires users to provide some sensitive information, such as their location, it therefore raises concerns about the violation of the right to privacy.⁴⁶

21.  The Government holds a daily update on the Covid-19 situation where the spokesperson, usually a medical doctor, briefs the press as well as the public on the global and domestic situations. The Government always takes this opportunity to provide advice and guidance on how to comply with the 30 Covid-19 regulations.

22.  Due to its broad authority under the 2005 Decree, there is no divergence between law and guidance.

23.  Since the 2014 coup, Prayuth Chan-ocha, as the head of the NCPO, weakened mechanisms which would oversee the exercise of executive power through new rules and the appointments of NCPO sympathizers into these oversight posts (see further Part I above).⁴⁷

24.  The Parliament does not have an ongoing oversight role over decree- or rule-making powers of the Cabinet. It has power to approve or reject the promulgation of an emergency decree, but the 2005 Decree had already been developed and approved in 2005.

25.  The only oversight available to Parliament is through debate and inquiry. Only the House of Representatives can hold a no-confidence debate once a year upon the request of one-fifth of MPs.⁴⁸ No-confidence debates may be directed at the Prime Minister, any other minister, or even the Cabinet as a whole. Once a year, the Senate may hold a debate of general inquiry if three-fifths of senators request so.⁴⁹ But, in this latter case, there will be no vote nor the passing of a resolution.⁵⁰ In addition, each MP or senator may make an inquiry, whether in writing or verbally, to any member of the cabinet regarding their scope of authority.⁵¹ An answer to this inquiry does not require a vote afterward. However, as Prayuth Chan-ocha enjoys a majority in the lower house, and has appointed the upper one, debates and inquiries regularly fail to hold him accountable for any policy mishap.

26.  In February 2021, the Opposition, for the first time, opened a no-confidence debate concerning the PM’s competency in the handling of the Covid-19 pandemic. The PM was accused of incompetency regarding the economy, and the Public Health Minister, Anuthin Chanveerakul, was similarly accused for allowing Covid-19 to spread and for his inability to secure an affordable vaccine for the public due to short-sightedness and a conflict of interest.⁵² While it is noted that the Opposition was able to present convincing details, the PM and the Public Health Minister received votes of confidence from the coalition parties. Indeed, Anuthin received the most votes of confidence, suggesting that polarization prevents effective scrutiny by the Parliament.

27.  The Executive cannot extend its power without Parliament’s approval in the form of an Act. However, the 2005 Decree has already given the PM an absolute power with virtually no accountability. There is no limit to how many times the Government may extend the emergency situation. The Government has full discretion on what constitutes an emergency. In the southernmost provinces, where an armed conflict has continued for years, the 2005 Decree has been in effect for 16 years.

28.  Parliamentary sessions have continued with minimal interruption during the Covid-19 pandemic. This is despite reports of Covid-19 infections within the entourages of MPs and the cabinet.⁵³ No virtual meeting of Parliament has been allowed.

29.  In 2020, the Parliamentary session commenced on 28 February and was intended to end on 21 May 2020, but in April, the Government’s coalition resolved to close the session prematurely to prevent any further spread of Covid-19. The premature closure delayed a debate on three emergency decrees on the Covid-19 budget. Parliament reconvened on 22 May, the usual date for the opening of the annual Parliamentary session, and the meeting of Parliament continued as usual. The only impediment, in addition to all the preventive measures, was a curfew—meetings could not run beyond 11pm. On 27 May, the House of Representatives approved the three emergency decrees after a brief debate.⁵⁴ In December 2020, in the wake of a second wave, the Speaker of the House ordered a two-day suspension on 24–25 December.⁵⁵ During the suspension, the parliamentary committees were allowed to meet as usual. Despite a lockdown and recommendations of a virtual meeting, the House of Representatives reconvened in the New Year to meet physically.

30.  The Opposition opposed the move to prematurely close or suspend the session, claiming that such a decision absolved the Government of any accountability under the public health emergency. The premature closure prevented the Opposition from offering their input on how to best tackle Covid-19. The Opposition tried to gather signatures to support a petition to the Speaker of the House to reopen the session but could not get enough signatures.⁵⁶

31.  There already exist regulations on a trial via video conference and e-filing (Section 87/1 of the Criminal Procedure Code),⁵⁷ the President of the Supreme Court’s Regulations on a criminal trial by video conference,⁵⁸ and on electoral filing.⁵⁹ The Thai judiciary is familiar with such practices, although not on the scale seen during the Covid-19 pandemic. As such, there has been no new legislation in this area. To ensure continuous service in the wake of Covid-19, the Court of Justice, the main judicial body, issued the President of the Supreme Court’s recommendations that (1) prohibited judicial personnel from travelling to countries with reports of Covid-19, (2) advised the Court of Justice to postpone hearings unless necessary, (3) encouraged electronic filing over physical practices, (5) to continue trials remotely via video conference, and (6) if necessary, preventive measures such as face masks and temperature screenings must be applied to judges and attending parties for in-person encounters.⁶⁰

32.  So far, there has been no evidence of a digital divide between technologically experienced and unskilled users. It seems that the right to justice of Thais has not been impeded by Covid-19. The Judicial Commission, the executive of the Court of Justice, reminds judges in the aforementioned recommendation that a trial by video conference must receive consent from the parties and such practice must not lead to a particular advantage nor disadvantage in litigation.⁶¹

33.  However, Covid-19 has still caused a disruption to justice system. The Court of Justice postponed a large number of hearings originally dated between 24 March to 31 May 2020. Thus, many cases were inevitably delayed.

34.  The judiciary has no power over the declaration of the state of emergency. This power rests solely with the PM. Moreover, the 2005 Decree exempts the exercise of emergency powers, rules, orders, or acts from the Administrative Court’s judicial review, leaving them to the Court of Justice, which is known to be more deferential to the government. Even so, government personnel who have acted under the 2005 Decree are not subject to criminal, civil, or disciplinary liability if they have acted in good faith and in a measured, non-discriminatory manner.⁶² As a result, there is little judicial scrutiny on the Government’s exercise of emergency powers. It is not subject to judicial review nor liability. The only recourse is a tort lawsuit, but nobody has yet pursued such a remedy.

35.  No election was suspended. The last general election was in March 2019, so no general election is planned until 2023. Since Covid-19 struck, the Election Commission has held two by-elections and two nationwide local elections, all of which were held on schedule.

36.  The Election Commission applied the usual preventive measures at the voting booth, such as temperature screening, hand sanitizers, and face masks. It also reduced the number of voters per booth to avoid overcrowding.⁶³ These measures had no effect on access to voting.

37.  On 27 March 2020, the PM set up the Centre for Covid-19 Situation Administration (CCSA).⁶⁴ This body is chaired by the PM himself, composed of experts from academia and other officials from various Ministries, notably the Ministry of Public Heath, the Ministry of Interior, the Ministry of Commerce, and the Ministry of Foreign Affairs. The CCSA is responsible for reporting the number of positive Covid-19 cases. It also plays a role in initiating prophylactic and proactive measures against the spread of the virus.

38.  The CCSA’s advice is published although this is not required.

39.  Given its structure, the CCSA is under the Government’s control.

40.  The Government has not amended any law to limit press freedom in a wake of the Covid-19 pandemic. Regulation no. 1 prohibits news reporting that is false or would possibly drive the public to fear or panic.⁶⁵ The Government may order a halt or correction to such misconduct, but if a case would have serious repercussions, that person may be prosecuted under the 2005 Decree or the 2007 Computer Crime Act.⁶⁶

41.  The Government had previously shown restraint from infringing upon press freedom. However, in late July 2021, as the situation rapidly worsened, criticisms grew. On 29 July 2021, Regulation no. 29 prohibited the press and individuals from disseminating false news and misinformation, as well as any information that may cause panic.⁶⁷ Regulation no. 29 allows the Government to block an individual’s access to internet without trial. The measure was met with a strong reaction from the public. News organizations filed a lawsuit to the Civil Court pressuring the government to withdraw the regulation shortly after.⁶⁸

42.  The Ombudsman was established by the 1997 Constitution. It is a body of three experts who display honesty and an excellent understanding of public administration.⁶⁹ The Ombudsman is one of the independent watchdog agencies, the independence of which is guaranteed at the constitutional level. In theory, it does not belong to the legislative nor the executive branches. The three members are recruited through a special body with minimal political oversight. The Ombudsman enjoys a broad mandate to investigate any complaint about Government wrongdoing or unfair practice. It will then make a recommendation to the accused agency or file a petition to the relevant court.⁷⁰ However, the current Ombudsman was appointed by the NCPO regime, and has constantly avoided scrutiny and criticism of the Government of Prayuth Chan-ocha.⁷¹

43.  Similar to the Ombudsman, the National Human Rights Commission (NHRC) is another independent watchdog agency. It is a body of seven experts on human rights which is designated to prepare a report annually on violations of human rights.⁷² Again, the current NHRC was appointed by the NCPO regime. The Ombudsman and NHRC have played no role in monitoring the Government’s response to Covid-19. Nor is there a special reviewer assigned to monitor the public response to Covid-19.

44.  From a public health perspective, Thailand tells a successful story. Although it began with a slow start, it was able to bring down the transmission rate of Covid-19 quickly. Its success was noted by WHO.⁷³

45.  Thailand was the first country to detect a Covid-19 case outside China in late January 2020. The first few patients were Chinese tourists, but then local cases began to emerge. These cases were initially in tourist industry, but rapidly cases showed up in other parts of the population. The Government appeared reluctant to respond. Its policy-making was affected by fear over an adverse impact upon Thailand’s struggling economy.⁷⁴ From mid-February to the end of March, it issued only an internal guideline in the form of a Cabinet Resolution (see below). Each administrative agency was left to plan its own measures which proved inadequate and ineffective.⁷⁵ The Ministry of Public Health set up a screening table for arriving air passengers but the government did not bar international travel or impose a quarantine so the screening measure inevitably failed to detect cases amidst thousands of visitors. Some provincial governors were reluctant to ban social gatherings. As cases soared, the Government was forced to finally announce the emergency situation.⁷⁶ From then on, the Government enjoyed expansive powers with no oversight. It set an unrealistic goal of zero cases, which added to the devastating impact upon the Thai economy.⁷⁷ This period of all-out war against Covid-19 lasted from 26 March to late May 2020. After that, the Government gradually relaxed its measures. Social and commercial activities resumed, albeit preventive measures were maintained. In December 2020, the second wave hit Thailand. The Government remained cautious of implementing similarly strict measures, even when the statistics showed that this peak was the most serious so far.⁷⁸

46.  Logically, the next phase in public health measures was nationwide vaccination, but the Government has not yet provided a reliable and timely plan. Initially the Government refused to join COVAX and dealt directly with only one vaccine company, which caused a significant delay in delivery. The Government then procured substandard vaccines as a substitute.⁷⁹

47.  On 17 March 2020, the Cabinet passed a resolution on Covid-19 prevention measures.⁸⁰ A Cabinet resolution is not an administrative rule but an internal directive. It does not directly bind the people, but administrative agencies are compelled to comply with it or face disciplinary action. The most comprehensive campaign was rolled out on 25 March 2020, known as the Regulation no. 1 of the 2005 Decree.⁸¹ This PM’s decree has the status of an administrative regulation with a nationwide jurisdiction. It provides a minimum set of measures in order to control Covid-19. Provincial governors may supplement these measures with their own orders but may not exempt the measures from central government. For example, many provinces banned the sale of alcoholic beverages out of a fear of social gatherings.⁸² A few more measures were later added.

48.  The most recent regulation, Regulation no.18, introduces five classes of Covid-19 control zones: maximum and strict control (dark red zone), maximum control (red zone), control (orange zone), close surveillance (yellow zone), and surveillance (green zone).⁸³ Criteria for zoning includes (1) the number of cases, (2) the number of infected districts, (3) the nature of transmission, eg the number of significant clusters and evidence of local transmission, and (4) hospitals’ capacity to handle the epidemiological situation.⁸⁴

49.  Normally, an administrative rule or regulation is subject to the Administrative Court’s judicial review. However, Section 16 of the 2005 Decree is an exception as it exempts rules, orders, or any action issued under the 2005 Decree from the Administrative Court’s judicial review. A lawsuit to challenge an act under the 2005 Decree falls under the jurisdiction of the Court of Justice, which is considered to be more deferential to the government.

50.  In most cases, people were inclined to comply with the measures, so they were very effective. People diligently wear facial masks in public and alert the authorities of any social gatherings. Such willingness tends to stem from fear of potential infection and harsh punishment for not adhering to measures. There is no major litigation challenging the exercise of emergency power. Gradually, the PM, upon recommendation from the Covid-19 taskforce consisting mostly of medical doctors and national security personnel, lifts each measure as needed.

51.  The Cabinet Resolution of 17 March 2020 encouraged administrative offices to consider work from home (‘WFH’) or adjusting office hours to avoid crowding offices. It also promoted a greater use of the internet, such as for virtual meetings. Every agency has to submit its WFH plan to the Covid-19 Command Centre.⁸⁵

52.  Although the 17 March 2020 Cabinet Resolution cannot have a legally binding effect on people, the Resolution commanded provincial governors to exercise their authority according to Section 35 of the CDA to monitor and discourage the movement of people within their jurisdictions. Daily reports must be submitted to the Director General of Department of Disease Control.

53.  Regulation no. 1 did not forbid citizen mobility, it simply encouraged certain categories of individuals who were at high risk if infected to stay home: (1) those 70 years old or above; (2) patients with chronic diseases (ie diabetes, high blood pressure, pulmonary and brain disease, respiratory diseases, and allergies); and (3) those five years old or younger. They were asked to remain in their dwelling places except for necessary reasons, for example medical appointments, financial transactions, communication, grocery shopping, or legal transactions.⁸⁶

54.  Although the Government did not restrict commuting, very few people were effectively able to travel once all governmental offices and most privately-owned businesses closed.

55.  On 2 April 2020, the Prime Minister issued Regulation no. 2 imposing a curfew from 10pm to 4am.⁸⁷ Exemption was granted only in special circumstances, such as for medical treatment, as well as the transport of consumption goods, agricultural produce, groceries, medical equipment, and fuels. Those who wish to travel must obtain a document stating their reasons. However, there were reports of police detaining workers transporting agricultural produce and construction equipment despite proof of the document.⁸⁸ Out of confusion over exemptions, another decree, Regulation no. 3 dated 10 April, clarified that an exemption was granted to the following persons: (1) government personnel, civilian assistants, soldiers, and policemen; (2) patients and their carers or medical personnel; (3) transporters of food, medicine, medical supplies, mail, newspaper, or inbound and outbound goods; (4) transport of persons for quarantine; (5) service-people for indigents, gas stations, parcel delivery, utility repair, garbage collection, telecommunications maintenance, banking, stock markets, insurance, and rescue operations; and (6) night-shift security guards, rubber plantation workers, and fishing boat labourers. They shall produce identity documents as well as documented evidence of their circumstances in order to obtain permission to travel during curfew.⁸⁹

56.  Over 18,000 cases of curfew violation were recorded.⁹⁰ Curfew was finally lifted on 12 June 2020.⁹¹

57.  On 9 March 2020, the Civil Aviation Authority of Thailand ordered that inbound travellers from certain countries must produce a health certificate prior to boarding an aircraft heading to Thailand.⁹² According to the CDA, a traveller must complete a form about their medical condition and they are subject to a 14-day quarantine upon arrival. At first, these measures were applied to travellers from four countries and two special administrative regions: South Korea; the People’s Republic of China, including Hong Kong and Macau; Italy; and Iran.⁹³ Moreover, under the CDA, a public health monitoring agency at the airport may deny entry into the country or even disembarkment from an aircraft where there is no clearance.⁹⁴

58.  On 17 March 2020, the Cabinet repeated that there would be no border closure but it required travellers from the aforementioned four countries to (1) obtain a health certificate issued within seventy-two hours prior to travel, (2) purchase health insurance, (3) agree to install a tracing application, and (4) go into a 14-day quarantine. These measures were extended to every port of entry, not only airports.⁹⁵ These measures would not be imposed upon returning Thais who were encouraged to return to the country at the earliest convenience. For outbound travellers, the Cabinet forbade civil servants and other government employees to travel abroad unless strictly necessary.

59.  Regulation no. 1 under the 2005 Decree shut down the border except under limited circumstances, such as diplomatic missions and repatriation flights. Travellers must present a fit-to-fly certificate issued within seventy-two hours prior to travelling. Upon arrival, they are to be placed in a 14-day state quarantine period upon arrival to Thailand.⁹⁶ Outbound travelling was not subject to such restrictions. Stranded Thais and their relatives criticised the Government for their failure to arrange adequate amounts of repatriation flights in time.⁹⁷

60.  The Government tried to devise a plan to accommodate people in quarantine, and offered alternatives to the state-run facilities. A traveller can choose to stay in a hotel that joins the ASQ (Alternative State Quarantine) programme at their expense. Recently, a plan has been made to shorten the 14-day quarantine into five or seven days in order to attract more tourists.⁹⁸

61.  For internal travel, Regulation No. 1 also discouraged trans-provincial travelling, but internal travel was not banned.⁹⁹ It ordered checkpoints to monitor travelling and detect any infected travellers. During the second wave in early 2021, some provinces in the red zones required departing travellers to acquire a permit from their local authority.¹⁰⁰ Some provinces with low cases of Covid-19 banned travellers from the red zone, subjecting them to 14-day quarantine.¹⁰¹

62.  In March 2020, a Thai citizen studying in Canada challenged the legality of the Civil Aviation Authority of Thailand Announcement which requires all Thais seeking to return to Thailand to obtain a ‘fit-to-fly’ Covid-free certificate 72 hours before boarding an aircraft,¹⁰² claiming that this requirement imposes a disproportionate burden upon all returnees, thus violating their constitutional right to homecoming. The case attracted huge media attention, but the Administrative Court confused the Civil Aviation Authority of Thailand’s Order with that of Regulation no. 1. Thus, it ruled in favour of the Government, yielding to the ouster clause enshrined in Section 16 of the 2005 Decree which strips it of the power to review all subordinate regulations issued by the PM.¹⁰³ The case was appealed to the Supreme Administrative Court.

63.  The Cabinet Resolution of 17 March 2020 delegated decision-making to the provincial governors and the communicable disease committee of each province to cancel high-risk events such as concerts, trade expos, and religious, cultural, and sports activities.¹⁰⁴ For places that remain open, there shall be preventive measures used such as face masks, temperature checks, and social distancing. Most importantly, the Cabinet decided to postpone the 2020 Songkran Festival, which was usually the holiday when most Thais travel home.¹⁰⁵ The Cabinet has not cancelled the Songkran festival in 2021, but has banned specific activities such as splashing water at each other.

64.  Regulation No. 1 forbade gatherings, especially an assembly that may result in disorder.¹⁰⁶ The ban on public gatherings, however, was criticised by Human Rights Watch as its aim was not at preventing Covid-19 but rather at quelling budding protest.¹⁰⁷ The ban has been in effect throughout 2020 and well into 2021, despite the fact that the Government has lifted other public health measures.

65.  Regulation No. 18 forbade meetings of more than 100 participants in the red zone (including Bangkok). Reduced opening times also apply to restaurants, pubs, and bars in the red, orange, and yellow zones (closure by 11pm in the first two zones, and 12am in the latter).¹⁰⁸

66.  The 17 March 2020 Cabinet Resolution temporarily closed universities, international schools, and tutor schools for two weeks.¹⁰⁹ On the same day, the Ministry of Education ordered all public and private schools to close.¹¹⁰

67.  Regulation No. 1 expanded closure to at least (1) sport facilities, stadiums, playgrounds, and race tracks all over the country, (2) pubs, theatres, massage parlours, spas, gymnasiums, and fitness centres in Bangkok and adjacent provinces, and (3) other places, such as national parks, museums, public libraries, religious premises, markets, shopping malls, partially or as a whole as necessary, subject to an approval from a provincial communicable disease committee.¹¹¹

68.  A few basic facilities may continue to operate, for example, hospitals, pharmacies, restaurants (without entertainment), takeaway dining places, convenience stores, banks, and gas stations. Preventive measures, eg physical distancing, wearing facemasks, and temperature checks, must be applied. The governmental offices would remain open, although government agencies may allow remote working policies as long as this did not inconvenience the public.¹¹² Regulation No. 10, issued on 12 June 2020, reopened most facilities. Schools also resumed on 31 August 2020.

69.  According to Regulation No. 18 issued on 29 January 2021, the strictest control measures apply in the dark red zones, deemed as the epicentre of the contagion, where entertainment venues, massage parlours, boxing clubs, fitness centres, and internet cafés were ordered to close.¹¹³ Teaching at both schools and universities, as well as conferences and meetings, were to be conducted online. Dining-in restaurants and department stores are allowed to open until 9pm.¹¹⁴ In other zones, schools, colleges, and universities can resume in-person teaching.

70.  Regulation No. 1 encourages a minimum of one metre’s physical distance between individuals.¹¹⁵ Many private premises request up to two metres physical distance.¹¹⁶ There is no direct sanction against those who ignore the recommendation but government officers may refuse to allow premises to reopen for business if they do not comply.

71.  The issue of face coverings was decided at a provincial level. Each governor may decide whether or not to make the wearing of face coverings mandatory. On 23 March 2020, the Bangkok Metropolitan Authority asked for cooperation from citizens in wearing face coverings, but other provinces, such as Phuket and Chiang Mai, imposed a sanction under the CDA.¹¹⁷ Initially, people were encouraged to use surgical masks but, due to a shortage, cloth masks were also accepted. There was confusion as the provincial court of Kantharalak in north-eastern Thailand acquitted two individuals who were found without face masks.¹¹⁸ The Court found that the language of the mandatory facial mask order was not clear enough. However, the Supreme Court reaffirmed that failure to wear a face mask is punishable under the CDA and the Emergency Decree.¹¹⁹

72.  Against the backdrop of the second wave of the spread of Covid-19, face coverings became mandatory in 54 out of 77 provinces under the CDA, including in major cities such as Bangkok, Phuket, and Chiang Mai, by the end of April 2021. A failure to comply could potentially lead to a sentence of two years imprisonment and a fine of up to 40,000 THB (approximately $1,230 USD) under Section 18 of the CDA.¹²⁰

73.  As for the Government, the Cabinet initially ordered a boost to the production of face masks and hand sanitizers.¹²¹ If necessary, equipment would be imported. However, the situation quickly worsened. News emerged of severe shortages amongst the general public as well as in hospitals. Corruption exacerbated the problem as some politicians were accused of being involved in profiteering from these much-needed goods.¹²² Regulation No. 1 imposed a prohibition on stockpiling essential goods, including medical supplies, food, and water,¹²³ and it halted the export of these supplies. On the flipside, listing face masks on the list of controlled goods disincentivised their production. Worse still, many factories were then harassed by officials trying to crack down on profiteering, but, in effect, frightening the private sector.¹²⁴

74.  The CDA does not distinguish between isolation or quarantine. According to the CDA, a government official may order an infected individual or an individual suspected of being infected with a highly contagious disease to be tested and isolated until there is confirmation that they are clear of infection or have made a full recovery.¹²⁵

75.  The Government did not conduct active testing out of budgetary and practical concerns, but it recommended those at risk to get tested. According to Section 36 of the Nursing Business Act, the Ministry of Public Health recognised Covid-19 patients to be in an emergency, so they could get tested for free even at private hospitals.¹²⁶ If a person is tested positive the expense is waived. Otherwise, they will be responsible for any expenses. A director of a hospital which charges a Covid-19 patient for treatment faces up to two years imprisonment and a 40,000 THB (approximately $1,230 USD) fine.

76.  According to an assessment by Thailand Development Research Institute, a think-thank, unlike with the preventive measures described where Thailand seemed to excel, the country was less successful in securing vaccines in a safe and timely manner.¹²⁷ It has been argued that this is partially because of red tape. According to the Government, the procurement regulation did not allow it to invest in or pre-purchase vaccines whilst they were in development. The Government thus refused to fund domestic research on a Covid-19 vaccine which lessened its prospect of success further. The Ministry of Public Health then had to wait until a vaccine was approved, but by this time it would already be too late for timely procurement.¹²⁸ However, in a contradictory twist, the Government entered into a partnership with AstraZeneca, granting Thailand the right for the vaccine to be manufactured by SiambioScience—the subsidiary of the Crown Property Bureau.¹²⁹ Thailand then rejected an invitation to join COVAX or to secure vaccine from other manufacturers.¹³⁰ As a result, when Covid-19 vaccines became commercially available, Thailand’s vaccination plan fell significantly behind other countries and at a much higher cost. Furthermore, a politician who tried to question the AstraZeneca deal was charged with lese majeste because of the deal’s connection to the King.¹³¹ To calm the public furore, the Government quickly purchased SinoVac, but the move suffered from a lack of trust and allegations of corruption—one of the investors in SinoVac’s development was a well-connected Sino-Thai conglomerate.¹³² Members of the Cabinet also refused to be vaccinated, worsening the public response to the PM’s vaccination programme.¹³³

77.  So far, the Thai Food and Drug Administration has certified six vaccines for use, but the certification process is very slow unless that vaccine is endorsed by the Government or a member of the royal family. AstraZeneca and SinoVac were approved in January and February 2021 respectively. The third vaccine to be approved was Johnson & Johnson in March 2021, but the Government had yet to purchase it. There was also an alternative vaccine, SinoPharm, which was imported by the Chulabhorn Research Academy, which the FDA approved in May 2021 within a week. The Academy is linked to the King’s youngest sister, Princess Chulabhorn, the president of the academy, which sell the vaccine to the public. Other vaccines, Moderna and Pfizer, were certified in May and June 2021 respectively, but they have not been delivered due to lengthy negotiations.¹³⁴

78.  Some local governments tried to directly purchase vaccines, but the Ombudsman halted such attempts, claiming that the vaccine has to be a national programme in order to best monitor the result.¹³⁵ At the same time, private hospitals are also trying to procure more reliable vaccines—they too have been ordered to take down advertisements of their plans as well.¹³⁶

79.  Vaccination is not yet compulsory. Currently, the priority as designated by the Public Health Minister is to vaccinate high-risk groups in 13 provinces where Covid-19 epidemiological situation is most serious. Priority is given to (1) medical personnel, (2) patients with health conditions and 13-week pregnant women, (3) those 60 years old and over, and (4) anyone in the general public exposed to a particular risk, such as those living with and having been in contact with infected individuals.¹³⁷

80.  The Government has never mandated the download or use of a contract tracing application. On 28 May 2020, it introduced the ThaiChana (Thai Win) application which was purported to facilitate the reopening of the country. Thais were encouraged to check in and out of premises via QR codes using the ThaiChana application to avoid crowding places. However, Thais may also opt to manually sign their names and provide mobile phone numbers if they are concerned about privacy. Manual registration, nevertheless, suffered, as many individuals gave fake names and phone numbers.

81.  On 6 January 2021, the Government switched to the MorChana (Doctor Win) application, originally developed by private developers, which uses Bluetooth and GPS—no reason for the switch was given. Although the Government’s spokesperson threatened that failure to install the application would lead to criminal punishment, Regulation No. 17 does not ostensibly impose imprisonment and fines on violators.¹³⁸ By then, some provinces began to roll out their own local version of the tracing applications. Overall, MorChana had only 6.8 million users, less than one-tenth of the population.¹³⁹ The biggest obstacle was the lack of trust in the Government not to abuse data for other purposes.¹⁴⁰

82.  A care home for the elderly is considered another potential cluster for Covid-19. On 1 May 2020, Regulation no. 5 shut down all elderly care facilities, but then allowed their reopening for long-term stays on 15 May 2020 after a protest.¹⁴¹ On 12 June 2020, Regulation no. 10 permitted a day care service.¹⁴²

83.  Some commentators have argued that the aforementioned measures are enforced in a discriminatory manner.¹⁴³ For example, while anti-Government protesters are constantly charged with breaching the 2005 Decree, eg for failing to maintain physical distance, pro-Government protesters can assemble without wearing a facemask or limiting their numbers.¹⁴⁴

84.  Thailand has long enjoyed good public health standards,¹⁴⁵ and public health officials play a focal role in enforcing Covid-19 response measures. In addition to doctors and nurses, local health volunteers play a very crucial role in monitoring and detecting Covid-19 cases. These volunteers were introduced during the Cold War period as a network to help spread health information from the Government and report cases of infectious disease within a community. When Covid-19 reached Thailand, these volunteers took note of newly arrived travellers, interviewed them to determine the risk of infection, and made sure that they properly quarantined themselves.¹⁴⁶ Their importance cannot not be overstated.

85.  Another key measure to reduce the spread of Covid-19 has been the checkpoints where travellers are interviewed and their temperature is checked.¹⁴⁷ Usually, a checkpoint is manned by a combined force of local government, police, soldiers, and local volunteers.

86.  However, the police have also been criticised for their heavy-handed approach. They made arrests that many considered inhumane, such as arresting homeless people and those traveling at night under a proven exemption document.¹⁴⁸

87.  Moreover, bribery and corruption within police allowed many illegal border crossings and gambling dens to operate, causing Thailand’s biggest spike of Covid-19 in December 2020.¹⁴⁹

88.  Local government played a limited role in assisting the provincial authority in combatting Covid-19.

89.  The Thai military has recently expanded its size and mission. This expansion has been amplified by the two coups in 2006 and 2014. On the one hand, the armed forces have played a key role in assisting civilian authorities, especially in setting up checkpoints and monitoring illegal border crossing. The Navy also offered a facility for temporary state quarantines. On the other hand, the military has repeatedly contributed to the spread of Covid-19. Most problematic is the military’s culture of immunity to any liability—given its recent role in politics, the military enjoys absolute impunity. The government categorically refused to pursue any legal action and hold the army accountable. In March 2020, despite the Cabinet’s resolution to shut down sports facilities, the Army held a boxing match that became a ‘super spreader’ event.¹⁵⁰ In July 2020, the Navy’s guests, Egyptian soldiers, ignored an isolation protocol which led to a small rise of cases.¹⁵¹ As with the police, corruption and bribery along the border also potentially contributed to the spike of cases in December 2020.¹⁵² This spike lasted almost three months, with more than 21,000 cases in comparison to 3,000 cases in April 2020.¹⁵³ Even when the Government issued a ban on such activities, military conscription was merely delayed but not totally cancelled .¹⁵⁴ The cadet academy was allowed to open when normal schools were not.

90.  There have been no cases of civil sanctions against a person for breaches of Covid-19 measures.

91.  Thousands of arrests, including criminal charges, were made for breaches of Covid-19 measures.¹⁵⁵ The Court of Justice has tried its best to avoid unnecessary punishment, with the President of the Court of Justice thus issued a directive suggesting that a court should consider community service and other more lenient measures in place of imprisonment.¹⁵⁶

92.  Opinion surveys reveal that the public is satisfied with the Government’s measures. Up to 94% of respondents support the 14-day quarantine The lowest support is for working from home, receiving only 85% approval, but this can be considered as high approval as well.¹⁵⁷ In another poll, up to 95% of respondents report wearing face masks in public spaces.¹⁵⁸ Thais tended to stay at home more and avoid meeting friends.¹⁵⁹ The caveat is that polling in Thailand is often unreliable as, during the military dictatorship, the Government has been accused of manipulating them to exaggerate its popularity, sometimes to as high as 99.3% approval.¹⁶⁰ However, one study suggests that compliance is high.¹⁶¹ Social sanctions play an important role in enforcing these measures.

Khemthong Tonsakulrungruang, Lecturer, Faculty of Political Science, Chulalongkorn University

Rawin Leelapatana, Lecturer, Faculty of Law, Chulalongkorn University

Aua-aree Engchanil, Associate Professor, Faculty of Law, Chulalongkorn University