Department of Theology Spring Term 2021

Master's Thesis in Human Rights 30 ECTS

Emergency Powers & Human Rights: Shield or Sword?

Analysing the emergency powers paradox in a Southeast Asian context

Author: Paola Zuleta Supervisor: Helen Lindberg

Abstract

The – the governmental provision of imposing exceptional powers applicable to emer- gencies – is a characteristic shared by a majority of national governments. The possibility to invoke emer- gency provisions, albeit necessary, is inherently vulnerable to abuse. Despite established restrictions on emergency powers in national and international law, some states have been found to act beyond these limi- tations, infringing on human rights in an overly disproportionate and excessive fashion. Such an exercise of emergency powers is contrary to their general aim: i.e., to protect essential human rights in the face of a crisis, be it political, social, economic, or a natural disaster. As such, the state of emergency can be seen as a paradox: both a protection of, and threat to human rights.

The present thesis, departing from an observed presupposition of existing and stable liberal-democratic structures for the established checks and restrictions to apply, placed the scope of analysis in a Southeast Asian context, a region featuring a broad variety of democracy levels. As such, the undertaken comparative study charted continuities, developments and changes pertaining to the enactment of emergency powers vis- à-vis human rights in and the between 1996 and 2021. Moreover, motivations behind the declaration of a state of emergency were also observed, as the identification of a situation as exceptional is incidentally the process through which a state of emergency is constructed and becomes usable, which in turn guides the formulation of emergency measures and their eventual impact on human rights.

The observed instances of states of emergency in Thailand and the Philippines illustrate how emergency powers are often followed by a militarisation of the political agenda, and pose a challenge for social trust, especially in contexts such as Thailand and the Philippines, whose legacy of rule has shaped how political life is enacted in contemporary times. Moreover, said legacy becomes yet another dimension of the state of emergency in that emergency powers are invoked to stabilise the political system so as to protect human rights, but ultimately the former is stabilised through repression of the latter. In this regard, repression of human rights is at its highest when the exception has entered several dimensions of the social fabric, i.e., becoming the norm. Within the framework of the regional War on Drugs and the Covid-19 pandemic, the cases further illustrate not only the intricate links between the juridico-political vis-à-vis repressive and re- strictive consequences, but also how they interact in a context of perpetual emergency. As such, the frequent invocation of emergency powers in the observed contexts encouraged the exercise of discretionary power through a reconceptualisation of the interaction between the political and the social, rending certain individ- uals, deemed a potential future threat, politically mute, overpowered by the sovereign decision. In this way, the implementation of emergency provisions were found to produce, portray, and maintain a largely fictional sense of security in the society.

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Síntesis

El estado de emergencia – la provisión gubernamental a través de la cual se dicta poderes excepcionales pertinentes a una situation de emergencia – es una característica que contempla el sistema jurídico de una mayoría de gobiernos nacionales. La posibilidad de declarar un estado de emergencia, a pesar de ser ocasionalmente necesario, es sin embargo altamente vulnerable ante un probable abuso de autoridad. Dado dicho riesgo, no obstante restricciones establecidas en leyes nacionales e internacionales regulando su uso, las medidas excepcionales adoptadas por algunos países han trascendido la serie de límites y controles contemplados, resultando en violaciones de derechos humanos de carácter inconmensurable y excesivo. Dicha adopción de poderes excepcionales contradice la prerrogativa original de los mismos, es decir, la proteción de derechos humanos fundamentales en caso se presenten graves circumstancias que perturben o amenacen perturbar en forma inminente el orden político, social, económico y ecológico del país en cuestión. Por ende, el estado de emergencia puede ser calificado como una paradoja: simultáneamente actuando como protector y amenaza a los derechos humanos.

La presente tesis localiza su punto de inicio en la identificada presupocisión de una estructura estable propia de un estado democrático de derecho para un funcionamento certero de los establecidos controles y límites. A manera de investigar la validez atribuída a dicha presupocisión, el ámbito de analísis concierne el contexto del Sudeste asiático, una región seleccionada dada su observada variedad de niveles de democracia. El estudio, de carácter comparativo, traza continuidades, desarrollos y cambios pertinentes a la aplicación de poderes de emergencia y sus repercusiones en materia de derechos humanos en los casos de Tailandia y las Filipinas entre 1996 y 2021. Además, las motivaciones tras la declaratoria también fueron observadas e investigadas, dado que la identificación de una situación como excepcional es incidentemente el proceso a través de cual el estado de emergencia se construye y se torna usable, lo que a su vez guía la formulación de las medidas de emergencia y consigna una eventual restricción de derechos humanos.

Los estados de emergencia observados ilustran como los poderes excepcionales en varias instancias conceden una militarización de la agenda política, lo cual circunscribe un reto en lo que concierne la confianza social, particularmente en contextos como Tailandia y las Filipinas, cuyo legado militar forma la vida política contemporánea. Además, dicho legado forma parte de una dimensión adicional del estado de emergencia, de acuerdo a la cual un sistema político inestable amerita la declaración de un estado de emergencia con el propósito de estabilizar el sistema político y proteger derechos humanos. Sin embargo, al final, el primero termina siendo estabilizado a través de la represión del último. En este contexto, la violación de derechos humanos es más prominente cuando la noción de la excepción se vuelve la norma. De esta manera, frecuentes declaratorias resultan en una reconceptualización de la interacción entre lo político y lo social, así silenciando políticamente a individuos considerados una posible futura amenza. Así, se observó que la implementación de poderes excepcionales produce, representa, y sostiene una sensación de seguridad social en gran parte ficticia.

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Acknowledgements

The present thesis constitutes a great personal achievement, and the culmination of an academic journey that started some years ago.

Here, I would like to extend my gratitude to the Department, for facilitating the necessary support amidst a global pandemic; and to my supervisor Helen Lindberg, for the inputs, the guidance, and the encouragement.

A big hug directed to my three programme ride-or-dies, thank you for all the laughs and the company.

Finally, my moral pillars; mamá por todo el Ñeq'e, to my siblings, and to my main inspiration Peter. Gracias.

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Table of Contents

Abstract ...... 2 Síntesis ...... 3 Acknowledgements ...... 4 1. Introduction ...... 7 1.1. States of emergency and human rights: A paradox ...... 7 1.2. Purpose and research questions ...... 8 1.3. Scope conditions and delimitations ...... 8 1.4. Definitions and terminology ...... 10 1.5. Previous research ...... 10 1.5.1. The human rights dimension ...... 14 1.6. Research gap ...... 17 2. Methodology ...... 20 2.1. Scientific premise ...... 20 2.2. Research design ...... 20 2.3. Case selection ...... 21 2.4. Material ...... 23 3. Theory section ...... 25 3.1. The construction of the state of emergency: the norm vs. the exception ...... 25 3.2. Ex-ante declaration: The political decision ...... 27 3.3. Ex-post declaration: Human rights implications ...... 28 3.4. Frame of analysis ...... 33 4. Analysis and results ...... 36 4.1. Thailand ...... 36 4.1.1. “Thai-ness” and the idea of a state ideology ...... 37 4.1.2. Act 1914 ...... 37 4.1.3. Emergency Decree on Public Administration in Emergency Situations 2005 ...... 37 4.1.4. Internal Security Act 2008 ...... 37 4.1.5. Prelude – 2007 Constitution ...... 37 4.1.6. 2008 – State of emergency declared by the Red faction (incumbent) ...... 38 4.1.7. 2009 – State of Emergency declared by the Yellow faction (incumbent) ...... 39 4.1.8. 2010 – State of Emergency declared by the Yellow faction (incumbent) ...... 40 4.1.9. 2014 – State of emergency declared by the Red faction (incumbent) ...... 41 4.1.10. 2014 – Martial law (Yellow-faction supported) ...... 43 4.1.11. 2020– State of emergency (Covid-19) ...... 44 4.1.12. 2020 – Severe State of Emergency ...... 44 4.1.13. General observations ...... 46 4.2. The Philippines ...... 47 4.2.1. 2001 – Proclamation 38 () ...... 48 4.2.2. 2003 – Proclamation 427 (State of Rebellion) ...... 48

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4.2.3. 2006 – Proclamation 1017 (State of emergency) ...... 49 4.2.4. 2009 – Proclamation 1946 (State of emergency) & Proclamation 1959 (Martial law) ...... 50 4.2.5. 2016 – Proclamation 55 (State of national emergency) ...... 51 4.2.6. 2020 – State of emergency (Covid-19) ...... 51 4.2.7. General observations ...... 52 4.3. Comparative analysis ...... 54 5. Conclusion ...... 59 5.1. Future research ...... 60 6. Bibliography ...... 61

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1. Introduction 1.1. States of emergency and human rights: A paradox The state of emergency - the governmental provision of imposing exceptional powers applicable to emergencies - is a characteristic shared by a majority of national governments throughout time periods and places. For instance, societies as early as the Roman Empire featured advanced proto-structures of comprehensive legal provisions, embodied through phenomena such as the iustitium, a mechanism for the suspension of law in favour of situations of necessity (Nissen, 1877). This concept is in multiple ways surviving in modern equivalent systems, as some of the most common issues underpinning a dec- laration of a state of emergency are amongst others safeguarding national security, upholding law and order, protecting citizens, and generally restoring normality (Molloy, 2020). Moreover, in line with a modern, more universal understanding of human rights, the concept has been further expanded and developed throughout the years into amongst others current provisions for states to derogate from cer- tain obligations established in international human rights law and national constitutions. Especially since the events of 9/11, the invocation of protracted and far-reaching emergency powers has become an increasingly recurrent global phenomenon, so much so that they have been described as being more of a governmental technique than exceptional (Agamben, 2005).

The possibility to invoke emergency provisions, albeit necessary, is inherently vulnerable to abuse. In this regard, what has often prevailed has been a more repressive aspect attributed to states of emergency, despite the general aim being the opposite: i.e., to protect essential human rights in the face of a crisis, be it political, social, economic, or a natural disaster (Wright, 2015; Despouy, 1999). It is in these types of critical circumstances that human rights have been found to be most at risk of being violated, and as such, arguments have been made for an increased human rights protection in those situations, including calls for more sophisticated international supervision mechanisms, constitutional texts, and derogation clauses (Despouy, 1999). However, despite established restrictions on emergency powers in both na- tional and international human rights law, some states have been found to act beyond these limitations, infringing on human rights in an overly disproportionate and excessive fashion (Malloy, 2020). As such, the state of emergency can be seen as both a protection of, and threat to human rights (Criddle, 2016). This has for instance been made evident in the aftermath of declared states of emergency in response to the Covid-19 pandemic, whereby in some countries, measures have gone beyond public health concerns, creating circumstances favourable to an arbitrary exercise of power and human rights violations (Vassileva, 2020). As such, the human rights norms that remain immune from governmental infringe- ment during states of emergency have been found to be rather few (Criddle, 2016).

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1.2. Purpose and research questions The present thesis aims to undertake a political study of states of emergency. Subsequently, the purpose is two-fold: Firstly, to examine the correlation between emergency powers and the recurrence of human rights violations in similar socio-political contexts from Southeast Asia. Secondly, to analyse the moti- vations behind the declaration of a state of emergency. These two aspects are mutually reinforcing and interdependent, as the identification of a situation as exceptional is incidentally the process through which a state of emergency is constructed and becomes usable (Wright, 2015), which in turn guides the undertaken emergency measures and their eventual impact on human rights.

The research questions are thus formulated as follow:

Under what conditions do states of emergency feature human rights violations?

What explains the prevalence of human rights violations within the framework of states of emergency in a Southeast Asian context?

1.3. Scope conditions and delimitations Given the ambiguity of the phenomena of states of emergency, the scope of study is narrowed to a political perspective, here understood as the praxis of enacting legal provisions of emergency powers (Zovatto, 1990). Albeit the relevance of the juridical component is recognised, this thesis is limited to the extent that law provides a framework for the use of emergency powers in practice. This is partly based on an argument laid forth by Loveman (1993), who observes that even if law itself can act as a basis for arbitrary exercise of power, the decision to invoke legal provisions for emergency powers remains exclusively political. This notion has further guided the incorporation of securitisation theory into the frame of analysis, securitisation being conceptualised as a political act and choice (Williams, 2003). Based upon this, the scope of study is further limited to formal declarations. The reasoning un- derpinning this decision is twofold: firstly, a declared state of emergency better correlates to the notion brought forward by Republican exceptionalism wherein the norm and the exception are viewed as sep- arate phenomena. Secondly, a focus on declaration facilitates the tracking and identification of states of emergency for inclusion in the study. Moreover, upon declaration, both the causal circumstances and the measures to be employed are typically publicly presented, which facilitates observation, as concep- tualisations of states of emergency that go beyond formal declarations tend to be undermined by sub- jectivity in whether the case should be considered a state of emergency or not. As will be discussed in more detail in 1.5. Previous research, attempts at systematising states of emergency eventually came to mirror the concept’s ambiguity through their internal multidimensionality and complexity, the emer- gency and human rights becoming intricately mixed in the end. For instance, situations featuring human rights violations could be categorised as de facto (but not de jure) emergencies, which further blurred the definitions. In this regard, the focus on formal states of emergency aims to avoid merely observing 8 human rights violations per se, as would for instance be the case in contexts of de facto states of emer- gency. Lastly, the choice of focus was guided by theory, as securitisation theory presupposes an under- standing of security as an act of speech, which locates security within the framework of discursive legitimation and political argumentation (Williams, 2003).

On a geographical scope, the study is limited to the Southeast Asian region, a choice based on the absence of a regional human rights’ supervisory mechanism of the likes that can be found in other continents under the respective treaties, such as the Inter-American Commission on Human Rights (IAHCR) or the European Court of Human Rights (ECHR). Of these, especially the IAHCR has exten- sive experience and praxis on the investigation of states of emergency in Latin America (Fitzpatrick, 1994). As such, a focus on these regions was deemed of less relevance for the analysis at hand seeing how the scope of the present thesis could be argued to be already present in the work of the respective supervisory bodies in these regions. Also, contrary to Latin America, some countries in Asia feature common law systems, which introduce extra dimensions to take into consideration when studying states of emergency as these countries through their constitution have the possibility to employ martial law to achieve the same results without the necessity to officially declare a state of emergency. As Fitzpatrick (1994: 16-17) describes it: “the common-law system places, at best, a modest emphasis upon the for- malities of emergency rule [...] In times of stress, therefore, these governments have a choice between formal emergencies under their constitutions or simply invoking the provisions of their permanent na- tional security laws.” In light of this aspect, the choice to declare a state of emergency in states with a common-law system is of extra relevance to observe. Equally relevant objects for observation are also the identified reasons and motivations behind such a choice. Moreover, the Southeast Asian region, partly due to its vast geographical scope and geopolitical history, features a wide array of systems of government and legislature structures – it is a region with diverse experiences of Asian and European colonial regimes, and in the case of Thailand, the complete absence thereof. The continent is also com- prised of states newly emerging from violent conflict, states with single-party communist governments, economically successful states that can be either formal democracies or semi-authoritarian, as well as new and aspiring democracies (Ramraj & Thiruvengadam, 2010).

On a final note, the focus of the study is limited to emergency powers in times of peace, i.e., outside the context of inter-state or intra-state armed conflict. This is done as means of limiting the scope to the study of human rights violations as prescribed by international human rights law, seeing how an inclu- sion of a context of war or armed conflict would likely require the inclusion of international humanitar- ian law, a dimension that was deemed to fall outside the scope of the present thesis.

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1.4. Definitions and terminology The existing literature on the phenomenon of the state of emergency features a variety of definitions and alternative names in different languages and legal systems, such as état de siège, state of exception, martial law, emergency rule, regime of emergency, public emergency, and regime of exception. This variation has been attributed to the fact that the conception of what emergency powers entail varies depending on the place, time, legal definition, governmental capabilities, and political circumstances amongst other factors (Wright, 2015). Moreover, the word “emergency” itself has been described as a concept that is elastic in nature (Lee, 1984), which contributes to its elusiveness regarding attempts to conceptualise it into a precise definition. As such, for this thesis it is deemed necessary to maintain a consistent use of terms, whereby two terms have been chosen and will be used interchangeably through- out: “state of emergency” and “emergency powers” respectively. The term “state of emergency,” is used as a general blanket term for the declaration of seemingly abnormal circumstances requiring the adop- tion of special measures (Wright, 2015). As such, the term does not only encompass situations covered by the above-presented terms but does also encompass governmental measures that restrict human rights on a greater level than that normally prescribed for (Despouy, 1999). Furthermore, the terms “state of emergency” and “emergency powers” are in this thesis defined as powers of a coercive nature invoked by, or on behalf of the state in response to a perceived threat or crisis. This crisis, in the view of those who invoke emergency powers, cannot be addressed by “ordinary” legislation (Ramraj & Thiruvenga- dam, 2010: 2).

Exception Norm Extraordinary measures Emergency politics Discretionary politics Ordinary measures Proactive politics Normal politics

Figure 1. Conceptualisation of states of emergency. Adapted from Wright (2015).

1.5. Previous research Often presented by classical thinkers such as Machiavelli and Rousseau as the ideal mechanism for emergency provisions, the Roman dictatorship consisted of the establishment of a specific emergency institution for times of crisis (Machiavelli, 1996). It was designed as a temporary measure – recognition of emergencies’ exceptional nature – and featured the law-regulated appointment of a dictator in charge, which established a law-regulated division between the actors declaring the emergency and the actors implementing emergency powers (Ackerman, 2004). The power vested in the dictator was largely ab- solute with the exception of the drafting of laws, as all regular government institutions remained fully functional and maintained their complete authorities (Machiavelli 1996; Rousseau, 1993). Despite being

10 more of a theoretical ideal, it has been described as the prototype for emergency powers in more modern settings (Gross & Ní Aoláin, 2006).

Another classical model of emergency power structuring concerns the French état de siège, a mecha- nism pertaining to the civil-law tradition and most frequently invoked in Latin America (Valadés, 1974; Cruz Villalón, 1984; Loveman, 1993). Described as an institution for legal crises (Radin, 1942), the état de siège argues that potential emergencies can be anticipated, and as such advocates for the ex-ante incorporation of possible countermeasures into the legislature. Proactive legislative adjustments in this model aims to legally regulate every step of the emergency declaration process - declaration, designa- tion of measures, establishment of period of validity, and termination (Gross & Ní Aoláin, 2006). Re- garding the allocation of powers, full jurisdiction on matters of public order would often befall the military, whereas the legislature retained its regular supervisory powers over the executive branch. Dur- ing WWI and the Great Depression, this model was put to the test, and was found to be more complex in practice than theoretically expected.

Lastly, the UK’s martial law-mechanism is considered the equivalent of an état de siège within a com- mon-law structure. The concept of “martial law” is vague and has been found to encapsulate a great variation of government measures and responses to crises of different types. Some examples are military law as well as non-statutory and exceptional powers. Martial law is based upon a range of characteris- tics, e.g., the common-law right wherein forceful responses to force in cases of invasion, riot, or violent disregard of the law are justified, and necessity acts as sole criterion for enactment (Gross & Ní Aoláin, 2006; Fairman, 1943).

In a post-WWII context, thinkers such as Friedrich (1950) and Rossiter (1948) revised various types of emergency powers aiming to identify checks and balances for the protection of democracy from author- itarian tendencies associated with states of emergency. Outside of a European context, states of emer- gency observed formal revisions in a country’s political and legal order and were most commonly in- voked in post-colonial and post-conflict transitions (Ramraj & Thiruvengadam, 2010). More recently, in a post-9/11 context, scholarship has been widely expanded in both sophistication and scope. Con- cerning the latter, scholars such as Ackerman (2004) and Cole (2004) have focused their contributions on a multi-perspective design of preventive states of emergency which prepare for a possible attack without undermining individual human rights. For instance, whereas some argued for legal courts’ qualified role as supervision of emergency powers, others, pointing to an observed tendency on the part of the courts to defer to the executive branch during crises, instead advocate for constitutional limitations on emergency powers.

Based upon the above-described foundations, previous scholarship on states of emergency and emer- gency powers thus largely pertains to a Western liberal-democratic tradition. Departing from this point,

11 previous research has been found to take place at two different, yet interwoven, discursive levels – on the one hand specific emergency powers, and their relationship vis-à-vis the concept of legality on the other. The main perspective is one of balance of power (Ramraj, 2010; Freeman, 2003), where the effectiveness of emergency powers is juxtaposed to the threat or dangers their use might constitute for the constitutional or human rights: “No matter how long they last, emergency powers pose a host of difficult trade-offs, between values of liberty, privacy, autonomy, and equality on the one hand, and those of efficacy, efficiency, and security on the other.” (Cole, 2004). This tension does also serve as the departing point for debates focusing on the potential for the preservation of legality while exercising emergency powers. In this regard, these debates can be conceptualised as a response to Schmitt’s notion of the challenge of the legal, and his proposed axiom that in emergencies, “the state remains, whereas law recedes” (Schmitt, 1985: 12). In its responsive capacity, the debate thus aims to answer the question of whether a state can maintain its legality in an emergency, and if so, how. Three general perspectives on the issue have been identified: a constitutional accommodative model, a resistance model, and an extra-legal model.

The constitutional accommodative model focuses on three paths of ex-ante regulation of emergency measures: accommodation, legislation, or interpretation. The logic underpinning this model is two-fold: a pre-existing institutional framework would provide emergency situations with a certain level of legit- imacy, whereas a mechanism ready to be invoked upon necessity saves time that would otherwise have gone to defining rules. Sometimes called “regime of exception” (Delfino, 2000; Cruz Villalón, 1984; Gross & Ní Aoláin, 2006).

On the other hand, the resistance model argues that nothing is justifiable enough for the enactment of extraordinary measures, as it risks leading to negative or permanent changes in the political structure, or to governments reaching for emergency powers in contexts of increasingly decreasing veritable emer- gencies. The model’s main weakness can be said to be its unitary view of the constitutional according to which an overreliance on institutional mechanisms can be perceived as too naïve seeing how it over- looks the reality of emergency powers (Cole, 2004; Dyzenhaus, 2005; Tushnet, 2005). What the models have in common is that whereas they support emergency “accommodations” to a certain extent, at the same time they aim for the maintenance of normal rules and principles as far as possible. As such, the overlapping issue of the debate regards whether ex-ante or ex-post checks on emergency powers are to be preferred in regard to the balance between liberties and rights and the requirements established by national security.

Based on the common understanding of emergency powers as exceptional in nature, scholarship on the extra-legal model has been found to be particularly extensive. Conceptualised as a challenge to the two previous models’ constitutional basis, this course of action, often featured in states with a common-law

12 structure, argues for the plausibility of state officials to go beyond the law if deemed necessary: “Under the complex conditions of modern life no government can in times of disorder, or of war, keep the peace at home, or perform its duties towards foreign powers, without occasional use of arbitrary authority” (Dicey, 2010: 271). As such, it can be said to rest upon the Roman maxim that famously states that “necessity knows no law” (Wright, 2015). Adherent to this argument is Locke’s theory on the preroga- tive power, i.e., the power “to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it.” (Locke & Shapiro, 2003: 172, para 160). The argument behind the power of the prerogative states that the legislative cannot always anticipate and draft laws that cover all situations that might, at some point in the future, be beneficiary or necessary for society. Moreover, the legislative structure might function at too slow a pace to adequately be able to adapt to the necessities and exigencies of the situation at hand (Locke & Shapiro, 2003).

An identified shortcoming of the theory of the prerogative lies in its assumption of an implicit ex-ante public acquiescence (Locke & Shapiro, 2003), which not only excludes the public but also fails to pro- vide strong enough limits on the use of extra-legal provisions, wherein officials are required to openly admit their extra-legal actions and ask for an ex-post public ratification. This is partly based on the assumption that no legal limits can be imposed once a state decides for an extra-judicial course of action (Gross & Ní Aoláin, 2006; Gross, 2003, Tushnet, 2003). Requesting an ex-post public ratification func- tions as a check on emergency powers through the concept of uncertainty. Since it is difficult to antici- pate the public’s response, uncertainty is assumed to be a limiting variable in officials’ cost-benefit calculations when considering an extra-legal course of action (Kahan, 1997; Dicey, 2010). This is es- pecially likely in democratic contexts, where the public might conclude that the undertaken actions violated principles and values deemed as too valuable to be infringed upon. As such, it can be said that the more important the violated values and principles are, the less certain an actor can be of attaining an ex-post ratification from the public (Gross & Ní Aoláin, 2006). In the same vein, when incorporating international law into the mix, the uncertainties and costs for extra-judicial measures increase even more. For instance, if the undertaken measures stand in violation with the state’s international legal obligations, especially those provided by human rights treaties, or if the measures are not encompassed in a suitable derogation, or if non-derogable human rights have been violated, the state might be subject to reparative duties under the pertinent international convention. In this regard, an ex-post domestic ratification is believed to further advance the process of international remedies, as a public acknowl- edgement of undertaken extra-legal measures and the reasons put forward by government justifying such actions can later come under international scrutiny (Gross & Ní Aoláin, 2006).

On a more practical level, the model of extra-judicial measures features both benefits and shortcomings. The benefits mainly correlate with the flexibility it provides governments when dealing with unpredict- able situations (Gross & Ní Aoláin, 2006), a view that builds on the argument that adopting temporary 13 measures that go beyond the law in pertinent situations might better preserve the rule of law than an ad- hoc accommodative bending of the law will: “there are times of tumult or invasion when for the sake of legality itself the rules of law must be broken.” (Farnsworth, 2001: 227; Dicey, 2010). On the other hand, a fear of authoritarianism and totalitarianism (Cole, 2003) questions the assumption that a devia- tion from the rule of law might in the long run better preserve it. The argument here states that if the government is permitted to deviate from the rule of law in some instances, there are no guarantees that it would not also presumably choose to deviate in other instances. Connected to this notion, the critique does also question the public’s adherence to the rule of law vis-à-vis the government’s – questioning why the public should respect the rule of law to a higher degree than the government (Ackerman, 2004). From this critical vantage point, permissible deviations from the rule of law are thus feared to give rise to an environment of impunity, wherein governments maintain an emergency mentality throughout so- ciety by claiming that the crisis remains unresolved or that new threats are incoming as means to main- tain the hold of its extra-legal emergency powers. A similar critique was also formulated by Machiavelli, who in Discorsi states that governmental adherence to the laws of the republic is essential for the latter’s success: “I do not believe, there is a thing that sets a more wicked example in a republic than to make a law and not observe it, and so much the more as it is not observed by him who made it.” (Machiavelli, 1996: 93).

1.5.1. The human rights dimension On a similar note, previous studies of human rights vis-à-vis states of emergency have mainly focused on legal supervision. Despite a breadth of literature on the subject, much of the scholarship has thus focused on means for restrictions of power that can be imposed on, and through, the legislative dimen- sion (Fitzpatrick, 1994). In this regard, the rule of law has been identified as a particularly relevant notion, due to its characterisation as an historical response to arbitrary executive power, which possibly enables human rights violations. This assumption further states that nations engaging in continuous human rights violations, especially of non-derogable rights, cannot be considered to fulfil the basic requirements of a state governed by the rule of law (Alford, 2017).

As such, the question of derogation is how most debates on the legality of emergency powers materialise when it comes to the issue of human rights violations. Here, one of the bigger disagreements regards the question of whether human rights derogations in favour of emergency powers can ever be said to be justified (Gross & Ní Aoláin, 2006). In this regard, some authors do not see states of emergency and democratic protection of human rights as at all compatible (Constant, 1989), whereas others highlight the possibility of better protecting human rights using emergency powers in circumstances that merit their use under supervisory provisions (Aguilar Rivera, 1996; Despouy, 1999, Rossiter, 1948; Ferejohn & Pasquino, 2004). One of the strictest such provisions is the notion of the exceptional threat (Friedrich, 1950; Delfino, 2000), pinpointed as one of the most justifiable reasons behind the declaration and use 14 of emergency powers. Despite difficulties in observing such a phenomenon in practice, the literature concludes that it remains of relevance to establish which types of exceptional threats are deemed as justifying the employment of emergency powers as a step in considering their legitimacy. This can be said to go hand in hand with the theoretical conceptualisation of human rights as being an enabling factor for collective deliberation on themes regarding the aspects of state power that can be deemed justifiable and acceptable (Sen, 2004). As a response to this identified need, states of emergency were subject to categorisation and definition attempts, which aimed to yield a coherent understanding of the phenomenon. This was further theorised to better inform the design of supervision mechanisms of emer- gency powers. These attempts yielded different typologies of emergency contexts, three of which are presented below.

Following the 1984 adoption of the Paris Minimum Standards of Human Rights Norms in a State of Emergency, the International Law Association (ILA) and its Committee on the Enforcement of Human Rights Law set to address the perceived problem of human rights monitoring in the contexts of declared emergencies (Fitzpatrick, 1994). Recognising states of emergency as being not only factually different and unique, but also transcendent over time, the ILA Committee sought to conceptualise states of emer- gency into a typology departing from a severity threshold based upon the derogation clauses in the ECHR, ICCPR and American Convention on Human Rights, respectively (Fitzpatrick, 1994). The final typology consists of six categories which divide the concept along the lines of de facto and de jure states of emergency, depending on the presence of an official declaration. The typologies also take into ac- count discrepancies between civil-law and common-law structures as well as proportionality, which also lead to the inclusion of “ordinary repression” as a typology category.

The second typological attempt was undertaken within the framework of a study on war regimes in France, Germany, the , and the United States (Fitzpatrick, 1994), and it is amongst others from this study that the applicable differences between emergency powers in a civil-law and common-law system respectively become apparent. Despite the rather narrow and Western-centred scope of the study, its mapping of differences in emergency powers’ formalities was nevertheless deemed a relevant perspective to highlight.

The third typological attempt was spearheaded by the UN Sub-Commission on Prevention of Discrim- ination and Protection of Minorities.1 Out of concern over the often-reoccurring declarations of states of emergency in some states and suggesting their likely connection to the declining status of the human rights situation in those same states, the Sub-Commission commissioned a detailed analysis on the mat- ter (Despouy, 1999). It is from this initiative that the so-called “reference model” was born as compiled

1 Was later renamed to the United Nations Sub-Commission on the Promotion and Protection of Human Rights in 1999.

15 by Nicole Questiaux in her report and typology of emergency powers (Fitzpatrick, 1994). What the study and typology contributed with was decisive for a further understanding of states of emergency as it identified the consequences it may have on human rights and formulated, amongst others, the recom- mendation of maintaining a permanent follow-up mechanism (Fitzpatrick, 1994).

Despite the important contributions of this study, the resulting typology is not deemed comprehensive as it holds a formal view of states of emergency and their declaration, excluding non-declared but argu- ably de facto cases of state of emergency. For instance, the typology does not take into account the provisions available to states with a common-law system, wherein perceived crises can be managed either through an increased implementation of previously enacted permanent national security laws, or the rapid issuance of new national security legislation, without needing to resort to the declaration of a state of emergency (Fitzpatrick, 1994). Nevertheless, this is a study that incorporated the relation of states of emergency vis-à-vis human rights into the UN agenda, evidenced by Resolution 1985/37, which authorised the appointment of a Special Rapporteur on the matter.

The overall aim of the mandate of the Special Rapporteur was to establish and update an annual list of states that from 1 January 1985 had either extended or declared a state of emergency, analyse states’ adherence to internal and international norms guaranteeing the legality of the state of emergency, and study the repercussions that adopted emergency measures had on human rights. In this regard, Despouy (1999) authored one of the more prominent studies on the suspension of certain human rights and state obligations in times of emergency as part of his mandate as UN Special Rapporteur. The study departs from international norms and formulates relevant principles and norms for the supervision and regula- tion of suspended human rights. As such, the Special Rapporteur’s expected contribution lay in the establishment of normative directives. These directives were in turn expected to facilitate the drafting of national legislative dispositions specific to states of emergency as well as to yield precise recommen- dations on the best manner to frame the matter in the future (Despouy, 1999).

Furthermore, these annual reports were supposed to serve as the foundation for a database of states of emergency aimed at facilitating their monitoring by the United Nations. However, the project came to face several challenges during its implementation, resulting in a largely incomplete end-product. For instance, a shortcoming in the reports concerns the use of incoherent definitions for a state of emer- gency, which resulted in the inclusion of different types of situations, such as contexts that were de facto but not de jure states of emergency (Despouy, 1999; Wright, 2015).

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1.6. Research gap Studying the recurrence of declarations of states of emergency is of relevance given how the exercise of emergency powers has been observed in several countries, often without regards to the national gov- ernmental structure – i.e., states of emergency are recurrent in both democracies and autocracies alike, something that has further been observed in the context of the Covid-19 pandemic. Moreover, a com- prehensive understanding of how exceptional situations fit together with equally exceptional measures is worthwhile, considering how the exceptional nature of states of emergency have in previous scholar- ship been equalised with more discretional and arbitrary forms of power (Wright, 2015). Nevertheless, despite their often reoccurrence in contemporary affairs, studies on states of emergency have since the end of the mandate of the UN Special Rapporteur in 1997 decreased in scope or been targeted to a post- 9/11 and/or North American context. Whereas the work of the Special Rapporteur constitutes a relevant starting point for the study of states of emergency and human rights, the UN project faced several chal- lenges, the shortcomings of which ought to be considered. For instance, as mentioned above, one of the major challenges of the otherwise exhaustive reports by the Special Rapporteur was the absence of a coherent conceptualisation of states of emergency, which accurately illustrates the difficulties associ- ated with the identification and conceptualisation of the phenomena. Another shortcoming was the re- ports’ overreliance on news-media and governmental reports, which left the Special Rapporteur with incomplete information as several instances of states of emergency often feature a promptly enforced censorship on news outlets as part of responsive measures. This is a particularly prominent feature in more repressive incidences of states of emergency, which incidentally was the Special Rapporteur’s main conceptualisation of the phenomenon (Wright, 2015). Moreover, regarding governmental reports, when facing a context of emergency, few countries have been found to timely (or at all) inform and send the pertaining reports to the required instances, such as the UN Secretary-General, or the UN Hu- man Rights Commission (García Sayán, 1989). These are aspects that make the data insufficient and difficult to compare over time.

Following the year 2001, the debate on states of emergency and much of the literature has been largely focused on the post-9/11 emergency powers related to a War-on-Terror-framework, while to a certain degree disregarding other important embodiments of the concept. Moreover, studies pertaining to a 9/11-perspective tend to be largely based upon legal approaches, which also limits the political perspec- tive of the study on states of emergency. Without undermining the importance and relevance of these types of studies, the present thesis argues for the need to incorporate other contexts and perspectives. In this regard, an empirical political study from a Southeast Asian context is deemed to be of relevance for broadening the existing knowledge on states of emergency on a global scale. This is based upon an identified scarcity of studies undertaking observations of states of emergency in these jurisdictions,

17 something that is unfortunate since the experiences of emergency powers in Asia are varied and empir- ically rich (Ramraj & Thiruvengadam, 2010). Moreover, in general terms, emergencies and extra-ordi- nary situations characterised as threatening the life of the nation have been identified as one of the greatest dangers that constitutional principles and freedoms face, seeing how these circumstances might enable a more prominent inclination towards a disregard of civil liberties, whereas upholding checks and balances may be demoted from its previously priority role (Gross & Ní Aoláin, 2006). A large part of the theoretical projections made in this regard stated that under emergencies, those who were “ene- mies of democracy” would, if given the opportunity, abuse the guarantees provided by the rule of law and destroy democracy from within (Loewenstein, 1937; Garnett, 1990:). This notion is further con- nected to the identified assumption that human rights are best protected within a consistently democratic framework. As such the reasoning behind this thesis’ political perspective aims to go beyond previous scholarly focus on formal or normative approaches, such as previous attempts to formulate recommen- dations for the supervision of emergency powers and the protection of human rights and democracy.

The pervading problematisation of the points highlighted above regard the fact that most theories (and their presented solutions) assume existing or functioning liberal-democratic governmental institutions for the successful application of the deterrent and control mechanisms presented therein (Freeman, 2003). For instance, Locke’s theory on the power of the prerogative, albeit illustrative, remains of lim- ited application for a Southeast Asian context mainly due to the assumption of existing governmental institutions, functioning legal infrastructure, normative commitment to democracy and social account- ability culture. In the Southeast Asian region, many of these prerequisites are either lacking or in weak conditions, for instance due to post-conflict circumstances, or a long tradition of military intervention in civil affairs, i.e., when the civilian control over the military is weak, or lastly in contexts with high rates of impunity concerning abuse of power by the state (Ramraj, 2010). In an illustrative example, Ackerman (2004) when discussing terrorist attacks in the context of US society and government, stated that such actions would not pose an existential threat to the nation, as the government “would survive the day” (Ackerman, 2004). However, this cannot be said to be the case in Southeast Asia, as for in- stance, in post-independence East Timor, the governmental structure itself was that which was under threat and the fabric of the new nation-state far from stable. Furthermore, some of the above-presented theories advocate a scope of relevance and generalisation that goes beyond democracies in a North American context. For instance, Gross (2003) states that his study is neither a post-9/11 nor a US- inclined one, whereas Ackerman (2004) purportedly focuses on liberal democracies, with the occasional focus on “the distinctive character of the US constitution.” However, despite these claims, the theories are deemed being fundamentally underpinned on a presupposition of liberal-democratic institutions for their meaningful applicability. For example, the extra-legal model, and especially the element of an ex-

18 post public ratification remains dubious – mainly seeing how this would presuppose a candid and trans- parent political environment, something that can be said to be more of an ideal, even in established democracies. Moreover, a public ex-post ratification is built upon the assumption of existing and/or enabling mechanisms for public deliberation (Gross, 2003). Existing and functioning liberal-democratic structures or institutions are not automatically present in all contexts, which in turn can be said to ques- tion the universal scope of relevance of these theories. This is of special relevance regarding the fact that after WWII, constitutional provisions for emergency powers have fundamentally never been in- voked in “advanced democracies” (Ferejohn & Pasquino, 2004: 2010), whereas “emergency powers remain alive and well in less stable democracies” (Ferejohn & Pasquino, 2004: 217).

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2. Methodology The thesis will survey data and information regarding state behaviour under emergencies, and categorise identified changes, continuities, and developments in the national human rights situation which can be associated with the exercise of emergency powers. In this regard, a qualitative methodology was deemed suitable, as the concept of state of emergency is a descriptively “thick” variable with many dimensions, and thus difficult to translate quantitatively in a way suitable with the aim of the thesis. For instance, to mark the number of times an emergency has been declared is not enough, since such an approach would falsely convey the notion that emergencies are always declared to the same end and for the same rea- son(s), a notion that undermines the envisioned research purpose and design. The analysis further ap- plies a so-called “building-blocks” analysis whereby a block represents a study of a type or subtype of a particular phenomenon and as such fills a gap in the overall theory (George & Bennett, 2005). This is an effective approach for theory testing and development, and here consists of the formulation of a typology of states of emergency undertaken on behalf of different goals. The benefits of employing this type of methodological procedure include narrower concluding observations, which in turn result in more precise generalisations and thus a higher level of validity (George & Bennett, 2005).

2.1. Scientific premise This study features interpretations, case studies and tendencies. Connected to the overall lack of a com- prehensive knowledge-frame regarding the political and practical enactment of states of emergency, the study is largely deductive as means to observe the nature of the correlation between emergency powers and human rights as well as between social research and theory (Bryman, 2012). This means that there is a constant and systematic interaction between concepts, contextual information, and findings (Glaser & Strauss, 1967). Moreover, the thesis incorporates the perspective of ontological authenticity in order to facilitate analysis of intricate interactions between society and governmental and legal institutions, as it visibilizes the levels at which political and social interactions take place (Bryman, 2012). One of the advantages of forming the analysis in this fashion is the facilitation of observations concerning social and political behaviour over time and within local characteristics.

2.2. Research design This study collects and compares data on two selected countries, and thus undertakes an across-case comparative study with a small-N approach. For the case comparison, the strategy of Mill’s method of difference is employed – whereby the chosen cases are as similar as possible on identified control var- iables (George & Bennett, 2005). One of the benefits of a comparative methodology lies in the produc- tion of strong outcomes as a result of a selection process based on similarity, whereas a disadvantage concerns a smaller generalisation scope, seeing how the method cannot possibly encompass each and every alternative reason explaining covariation. 20

2.3. Case selection As such, in order to enable meaningful comparisons, the cases for selection need to be as similar as possible. To this end, the following control variables have been identified and are kept constant through- out the case selection. Their inclusion was motivated by previous research on the determinants of the recurrence of human rights violations in contexts of states of emergency.

1. Weak political infrastructure

As was identified above, previous research and theories of states of emergency have been found to presuppose a stable presence and function of a liberal-democratic infrastructure of governance. As such, countries involved in analogous unstable political processes are considered for inclusion into the study. This was deemed to be of high relevance seeing how the contextual political systems wherein emer- gency powers are exercised and established plays a key role on their impact upon human rights, be it feebly functioning democracies, a well-established democratic order, or an autocracy (Freeman, 2003). Several countries in Southeast Asia feature a democratic transition in combination with authoritarian inclinations, something that contributes to a weak political infrastructure. In this regard, the operation- alisation of this variable is based on the so-called “first political question,” which proposes that for political morality and constitutionalism, some basic provisions need to be established. These are as follow: order, protection, safety, trust, and the conditions of cooperation (Williams & Hawthorn, 2008).

2. State party to the International Covenant on Civil and Political Rights (ICCPR)

Seeing how the theory pertaining to proportionality is based on the conceptualisation as stated in Art 4(1) of the ICCPR, the countries to be observed need to be state parties to the Covenant. Otherwise, the observation of proportionality would not be entirely meaningful for the thesis. The variable is opera- tionalised according to the country’s ratification status. As means to provide a meaningful controlling and coding of variables, ratification status is the focus, as the country in question needs to be considered bound to the treaty.

Moreover, an identified shortcoming attributed to the non-binding ASEAN Human Rights Declaration, adopted 2012, states that “for the ASEAN States which are relatively uncommitted to international human rights treaty regimes, participating in the ASEAN mechanism may reduce pressure to recognise international norms” (Doyle, 2014: 67). In this regard, seeing how a state party to the ICCPR is treaty- bound to inform the UN Secretary-General upon the declaration of a state of emergency, as well as of its reasons, ramification, and expected duration, this provision was deemed relevant particularly in what pertains the access to material on the subject, but also as a means of controlling for the identified ASEAN Human Rights Declaration risk.

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3. Civil law/Common-law legal structure

As elaborated above, civil-law and common-law legal structures provide different provisions for the exercise of emergency powers. Whereas a civil law structure might advocate for a more constitutionally accommodating model, a common law system might rather be inclined towards the extra-legal model.

4. Post-colonial/post-conflict transition/transitory status

As stated in 1.5. Previous research, transition either in a post-colonial or post-conflict transition has been pinpointed as one of the main reasons for the invocation of emergency powers in the Southeast Asian region. Seeing how such a transitory status does often presuppose a future democratisation, coun- tries which cannot be said to be stable/full-fledged democracies are included. This variable does also partly connect to the first variable regarding the assumption of functioning political institutions.

After application of these variables in the selection process, the cases chosen for analysis are the Phil- ippines and Thailand, contexts which were deemed appropriate cases for analysis due to the following reasons:

Despite the Philippines being a republic and Thailand a monarchy, both countries are officially charac- terised as constitutional in nature. Moreover, the President and the King respectively are both the as- signed Head of State, whereas the political power attributed to Thailand’s monarch can to some extent be compared to that of a President, particularly pertaining to emergency powers. Moreover, due to a relatively disproportionate allocation of powers between governmental entities in both countries, both have been identified as featuring a weak political structure. For instance, the modern Thai state structure has been described as being located in a deadlock between dominant but progressively challenged au- thoritarian tendencies, and a growing but still fragile democratic movement. In addition, the frequently common involvement by the elites and the monarchy at the cost of public participation in constitutional matters has resulted in an unstable and weak democratic structure. Meanwhile, the regime in the Phil- ippines has been described as a weak and low-performing democracy (The Global State of Democracy

Initiative Philippines, Undated)

Both countries are also state parties to the ICCPR, having ratified it in 1986 (Philippines), and 1996 (Thailand).2 In this regard, as the research design aims to compare the chosen cases over time, the start- ing point has been set to 1996, year when Thailand became a state party to the ICCPR. This way, this control variable remains constant.

2 Regarding Thailand’s ratification, the country has a relevant reservation regarding ICCPR Art. 4, which concerns the dec- laration of a state of emergency. The reservation in question states that “The Kingdom of Thailand interprets Article 4 of 22

Interestingly, both countries have been found to neither feature an entirely conventional civil law nor an entirely typical common-law legal system. Instead, the systems featured in both countries are so- called pluralistic systems, best described as a hybrid between civil and common law, as a remnant of a colonial past and extensive foreign influence in the region. The legal system of the Philippines has a civil-law foundation, legacy of Spanish law, which after the hand-over to the US, came to be influenced by common-law traditions (Mahy & Sale, 2015). Similarly, Thailand’s legal system is based on a civil law foundation and features broad influences from the common-law tradition (Kiettikunwong, 2019). Emergency provisions enacted within a hybrid system will most likely have analytical relevance, thereof the necessity of maintaining this control variable constant, even if it must be partly amended so as to encapsulate a hybrid legal system.

Regarding the control variable of a transitory state, both countries feature to some extent internal armed conflicts, albeit mostly localised – in the Philippines to , and in Thailand to the southern prov- inces – and small in scale due to inactivity (Thailand) or a signed peace agreement (Philippines). As such, the countries cannot be classified as being in a post-conflict transitory state. Moreover, whereas Thailand was never colonised, the Philippines gained full independence in 1946, and as such has a trajectory of a 75 year-long democratisation process. In this light, the countries cannot be classified as post-colonial transitory states either. However, both countries have declared a War on Drugs (the Phil- ippines in 2016, Thailand in 2003), which in many instances have coincided with the exercise of emer- gency powers. This does arguably place the countries in a transitory status, considering the War on Drugs as relatively subdued in scale, even if violent incidences are still recorded in both countries. Moreover, the War on Drugs (and the Covid-19 pandemic) can also be considered as the exception in a norm-exception dichotomic conceptualisation of emergency provisions.

Lastly, the cases were also chosen based on the availability of data.

2.4. Material Considering the legal base that underpins states of emergency, the evident first step was the consultation of respective national constitutions, adherence to and/or signatory status to relevant international con- ventions as well as any secondary legislation on state of emergency to discern any recent changes and the institutional forms at hand, for instance through observation of the legal praxis and jurisprudence of the International Court of Justice, as well as any national reports on a declared emergency. Secondly was the search for reports and data on current tendencies of states of emergency as well as human rights concerns in the chosen countries, something which was achieved through analysis of a variety of sources as follows. UN resolutions and responses by the states in question compiled upon request, observations

the Convention as requiring a party to the Convention to adopt measures in the fields covered by subparagraphs (a), (b), and (c) of that article only where it is considered that the need arises to enact such legislation.” 23 and reports compiled by the Special Rapporteur, Depositary Notifications by the UN Secretariat on the subject, the precedents established by international supervisory mechanisms with regional or universal competence such as the UN Human Rights Committee, by specialised agencies such as the International Labour Organisation and its Committee on Freedom of Association, the World Health Organisation, as well as the precedents established by non-treaty bodies such as the Interparliamentary Union’s Com- mittee on the Human Rights of Parliamentarians. Thirdly was the incorporation of a more critical and oftentimes local perspective through human rights reports by NGOs featuring their observations on the subject, such as Amnesty International and , complemented with reports by local NGOs if available. Lastly, press articles were incorporated as a complementary source to further expand the local context dimension. A more critical view of the material used highlights the importance to consciously consider the analysed context’s propensity to underreporting, or of hidden data, elements which affect the material available for observation, and extendedly the inferences drawn thereupon.

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3. Theory section

3.1. The construction of the state of emergency: the norm vs. the exception The theoretical understanding of states of emergency is in this thesis conceptualised in its two mutually cohesive dimensions: the declaration of a state of emergency, and the adoption of emergency measures, respectively. These are interpreted through a lens of Republican exceptionalism, a current of political thought which states that, at least in theory, the exception and the norm are separated from one another (Lazar, 2006). The theoretical current opposite to Republican exceptionalism is decisionism, which con- ceptualises the world in inherently chaotic terms, and so to a certain extent advocates a view of the exception as the rule. For this thesis, the lens of Republican exceptionalism was chosen due to its flex- ibility, as it foresees the co-existence of normal and exceptional situations, contrary to decisionism.

A declaration of a state of emergency, the first dimension of its conceptualisation, is according to Re- publican exceptionalism framed as the dichotomy between the norm and the exception, and the state’s possession of available protective responses to be invoked in a crisis, an understanding which views the exception as being just that, the exception. In this regard, classical thinkers such as Machiavelli (1996) and Rousseau (2002), departing from a view of the Republic as the only sphere wherein justice was possible, saw the invocation of protective special measures as justified when aimed to restore the ex- traordinary back to a state of normality. The discourse was further problematised by Friedrich (1950), who argued that despite clearly established lines between what constitutes the norm and what constitutes the exception, in practice, Republican exceptionalism may in many instances turn into decisionism. An example in this regard is the context observed in the US after 9/11 (Wright, 2015). Whereas on their part, Gross & Ní Aoláin (2006) problematise the norm-exception dichotomy through observations on how the significance attributed to the exception and/or the norm is subject to change after each declared exception. Upon declaration, the exceptional is theorised to become the new normal, which in turn places the attributed connotations of norm-exception as co-existent in a perpetual state of change. These problematisations of Republican exceptionalism are of relevance in that they challenge the dichotomy of the exception vs. the norm and highlight the fact that in practice, a division between the exception and the norm may become obscured. In addition, regarding practical implications from a political per- spective, the definition of a state of emergency remains fragmented. For instance, constitutional law has come to define an extraordinary situation as a threat that is exceptional in nature, albeit differing opin- ions prevail regarding its significance (Wright, 2015). In this regard, derogation clauses in international human rights treaties employ the substantive principle of severity as the threshold of what can be qual- ified as an emergency. Despite a similar focus, the terminology is where the treaties differ from one another. The ICCPR is arguably the more narrowly defined: a public emergency threatening the life of the nation, whereas the European Constitution of Human Rights (ECHR) shares the notion of a threat

25 to the nation and adds “war” to the prerogative. The American Convention on Human Rights (ACHR) goes even further through the addition of “war, public danger, or other emergency that threatens the independence or security of a State Party.” Moreover, while the notion of “the life of the nation” implies a restrictive interpretation, its attempted scope remains unclear. Suggestions to better define that ambi- guity have suggested that such a conceptualised emergency ought to threat the functions of constitu- tional institutions, such as the legislature or judiciary (Hartman, 1981). For instance, according to Delfino (2000), that which makes a situation extraordinarily threatening is the extent to which said situation has the capacity to impede the state’s normal functioning. Despouy (1999) on the other hand means that a situation is exceptionally threatening first when the life of the community is at stake. Meanwhile, in the aftermath of 9/11, a more political approach to states of emergency has been devel- oped in the form of securitisation theory, a perspective arguing that the extraordinary is more a framing process wherein issues become securitised – they are presented to citizens as threats, or matters of se- curity (Neal, 2006). Huysmans (2008) builds upon this notion by arguing that what actually makes a situation extraordinary is not so much the level of violence present as the politicisation of the phenom- enon. However, despite competing conceptualisations, some general agreement remains on some types of circumstances deemed exceptional, such as natural disasters, socio-economic crises and armed con- flict (Klein, 2007; Zovatto, 1990; Loveman, 1993). Frankenberg (2014) further adds organised crime to the list. As such, over time, states have been found to declare states of emergency against threats of military intervention, political unrest, criminal violence, general civil unrest, labour strikes, spread of diseases, or collapse of state institutions (Criddle & Fox-Decent, 2012).

Furthermore, the declaration of a state of emergency, i.e., the identification of a situation as extraordi- nary, remains at the sole discretion of the state: “For a legal order to make sense, a normal situation must exist, and he is sovereign who definitely decides whether this normal situation actually exists” (Schmitt, 1985: 13). For instance, despite frequent reports on observed human rights violations during states of emergency, most reports do not question the state’s decision to declare an emergency in the first place. As such, it was deemed relevant to incorporate the social construction and legitimisation of the phenomenon into the scope of study to better interpret how states of emergency are socially under- stood, motivated, and created. Pertaining to this aim, the theory includes some aspects of securitisation theory, whereby the social audience equip governments with a moral authority, which then acts as the legitimising and enabling force behind the use of emergency powers (Roe, 2008). Here Schmitt’s theory of the political is problematised and drawn upon in tandem with the Copenhagen School Securitisation Theory. While the two are not merged, what the following section does is to acknowledge the applica- tion of the concepts laid forth by Schmitt, primarily the friend-enemy dichotomy, the exception, and the sovereign decision as catalysts for the identification of key elements of the political. The aim of this exercise is to indicate how the theories intersect in key places and highlight how Schmitt’s ideas inform 26 relevant aspects of securitisation theory as framework for the observation of declining human rights protection in states of emergency.

3.2. Ex-ante declaration: The political decision Schmitt’s conceptualisation of the political and the sovereign decision is captured in the identified di- chotomy between the friend and the enemy: “The specific political distinction to which political action and motives can be reduced is that between friend and enemy” (Schmitt, 1996: 33). The enemy figure is thus seen as that which enables the political. Such an enemy figure comes into being through a deci- sion on a) the existence of an enemy figure, and b) the type of emergency that the enemy figure is perceived to give rise to. Underpinning such a decision is an assumed predisposition to engage in a life- and-death-struggle with said enemy if necessary (Williams, 2003; Schmitt, 1996). This is something that translates well into the principal motivation behind declarations of states of emergency, i.e., the security (or life) of the state. As such, some tentative guidelines for the declaration of a state of emer- gency often include the concept of the exceptional threat as basis for justification.

A possible theoretical counterargument in this regard might question the applicability of the friend- enemy dichotomy to an observation of states of emergency in times of peace as envisioned by this thesis. The argument then pointing to an interpretation of the dichotomy as applicable to zones of active combat in the first hand. However, in his references to the figure of the enemy, Schmitt (1996:28) states that “it is sufficient for his nature that he is, in an especially intense way, existentially something different and alien, so that in the extreme case conflicts with him are possible.” From this it can be inferred that neither a life-and-death-struggle nor active combat is necessary for the friend-enemy distinction to ap- ply. Especially the statement “in the extreme case” can be said to encapsulate this implicit meaning, i.e., that the enemy figure exists (and poses a threat) because despite the absence of combat or killing, there is an inherent possibility of the enemy manifesting in “the most extreme” of circumstances. In this regard, the decision of what constitutes the most extreme of circumstances would, according to the theory, fall upon the sovereign, a notion captured in one of Schmitt’s (1996: 30) most well-known aph- orisms, stating that “the sovereign decides whether there is to be an extreme emergency as well as what must be done to eliminate it.” This departs from a notion that the ramifications of the emergency cannot be formulated beforehand in legislative texts but are rather something that is determined through the decision. Moreover, seeing how these ramifications are constructed with reference to the friend-enemy dichotomy, the decision on who is friend, and who is foe, does arguably also extend to the sovereign.

Further illustrating the ambiguity of the emergency phenomenon, despite attributing the decision pre- rogative to the sovereign, the notion of the decision is further theorised to not only take place at an executive or “public” level, but to also be found in so-called “micro-decisions,” in line with the argu- ment laid forth by Honig (2009). The notion of micro-decisions can be said to be based on Huysmans

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(2008), who argues that exceptionalism has many more ways of entering the economic, political, soci- etal, and judicial fabric than through large-scale repression of civil liberties or detention camps, espe- cially considering the serious consequences they bring forth for the implicated social actors. A micro- decision can still be deemed to be a decision in a Schmittian sense seeing how such a decision might encapsulate a perception of a life-and-death struggle – likely discernible in the usage of rhetoric and/or imagery otherwise attributed to belligerent contexts. This can thus point to the social perception of a situation as threatening and as featuring palpable risks, something which gives rise to societal intensity. According to Schmitt, this societal intensity, rather than objective conditions, is the catalyst for the establishment of something as inimical: “the people or the nation remains the origin of any political event (Williams, 2003). In this way, this interpretation of the figure of the enemy further elaborates upon Schmitt’s assumptions and contributes to securitisation theory by shifting the focus to the concept of societal security. Societal security conceptualises security from the vantage point of the citizenry. Within this framing, concerns regarding a potentially threatened survival among citizens and societal groups endorse the spread of a general emergency awareness, which ultimately is what underpins the conceptualisation of existential threats found in securitisation theory.

According to the theory, the crucial moment wherein securitisation comes to be and comes to an end is linked to the speech act. This not only further correlates with Schmitt’s notion of how the sovereign decision on the exception guides what later becomes the political but does also place the act of speech within a framework of discursive legitimation and political argumentation (Williams, 2013: 512). How- ever, the fact that securitisation is an act of speech does not mean that something is securitised just through the utterance or reference to the word “security.” It is rather more concerning the identification of a threat that is existential, which yields a necessity for the employment of emergency measures, as well as about a social consensus regarding such an identification (Buzan, Waever & Wilde, 1998).

3.3. Ex-post declaration: Human rights implications In more practical and political terms, the norm-exception dichotomy can be observed through a concep- tualisation of the normal état de paix as a setting where the civil and military spheres are separate (Agamben, 2005). In this regard, the state of emergency is binomial, as it not only blurs the distinction between the two spheres, but also neutralises the public realm attributed to the collective and/or indi- vidual, a process through which the sovereign can decide on whereas an imminent threat is present or not (Huysmans, 2008: 166; Agamben, 2005). As such, paradoxically, security efforts are the outcome of a political (in)securitisation process wherein the sovereign uses the legal order for the structuring of the social order (Denemark, 2010).

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In this regard, the law itself may reflect sovereign power, as the law establishes the conditions under- pinning the identification of the social is as a problematic issue vis-à-vis the political, particularly con- cerning human rights. Through this process, political authority is (temporarily) concentrated at the state- level and employed in countermeasures targeting inter alia social movements with the aim to subdue potential resistance. However, the concentration of political power risks amounting to a monopoly, es- pecially when maintained for longer periods of time, ultimately vesting the government with broad provisions to stifle, perceived or actual, political opposition (Christie & Roy, 2001). In this regard, emergency powers often result in the dedifferentiation of security forces and their use of violence, wherein individuals are placed under the discretion of the sovereign and its held powers (Denemark, 2010: 4). In this way, individuals are reduced to bare life, a status wherein their political power and voice is taken away and all that remains is a mere biological existence (Agamben, 1998).

As such, the paradox is born, i.e., that which originally was designed to protect, is instead re-purposed with the implicit aim to cause harm, undermining the normative significance attributed to human and political rights (Denemark, 2010: 5). Since such a paradox does also undermine the democratic process, in order to maintain its integrity and that of political powers, the design of a political programme has been suggested as an evaluative tool for potential future threats. In this way, the attributes pertaining to the friend-enemy dichotomy can be rationally assessed depending on the perceived need for protection or control of society as well as the context at hand (McCulloch & Pickering, 2009). As such, based on an assumption of equal predictability, this tool attempts to align the present with the future. Albeit il- lustrative, the evaluative tool can be undermined by a neglect of contextual and social factors, which risks the arbitrary use of state praxis contravening liberal-democratic norms and values as an outcome. Hand in hand with this, a re-conceptualisation of rights has been observed, with prominence given so- cioeconomic rights whereas civil and political rights are limited as means to retain widely encompassing political powers at the state-level (Christie & Roy, 2001). As such, the practice wherein states resort to emergency powers can be framed as an unlawful manipulation of civil rights through an altruistic jus- tification of protecting those very rights, portraying in so doing an inaccurate image of a heightened security level at the expense of unchanged or lowered security levels for citizens.

States of emergency have further been conceptualised as “juridically organised violence,” and framed as the sovereign’s response to “actual” (unlawful) violence (Agamben, 2005: 29). In this regard, the belligerent nature of emergency powers is that which underpins the societal justification and acceptance of extraordinary measures. Armed conflict remains portrayed as the dichotomic opposite of the normal res publica; however, through the state of emergency, conflict legally becomes part of the norm, a process further facilitated by the assumption of an organic acceptance of sovereignly executed violence throughout society. This is in turn interpreted as an implicit compliance of sovereign autocracy and

29 human rights violations executed under the auspices of democracy. In this way, with acceptance be- coming part of the norm, democracy erodes into a liberal-democratic totalitarianism, deconstructing the legal norm in the process (Zizek, 2002). A quotidianly frequent exercise of emergency powers may increasingly replace the constitution, and in the face of crises, become a permanent governmental pro- vision (Agamben, 2005). In this regard, mechanisms designed to prevent temporary powers from be- coming permanent have been found to be undermined through interactions whereby the individual as a legal subject is linked to, while simultaneously being detached from, the law. This interaction is well- illustrated by the concept of homo sacer, whereby individuals are dismantled of legal status upon dec- laration of a state of emergency (Agamben, 1998). Subsequently, the sovereign grants individuals a new legal status defined along the lines of the friend-enemy dichotomy. In this respect, departing from a Schmittian conceptualisation of the sovereign, the notion of homo sacer can function as an explanatory force behind the normalisation of the state of emergency. Whereas the state of emergency legally em- powers the execution of sovereign violence in its acquired capacity as immunity guarantor, simultane- ously, the state of emergency strips individuals of their legal status, rendering them politically mute vis- à-vis the newly constituted emergency legislature (Humphreys, 2006). As such, whereas guarantees of civil liberties are ostensibly implied through the concept of security, during states of emergency this interaction is disrupted by a paradoxical correlation, wherein emergency powers are framed as a dise- quilibrium between public law and political fact (Agamben, 2005). Hereof, a liberal-democratic per- spective presupposes a balancing exercise between the societal and governmental spheres as means to secure an equal allocation of political and human rights between the two spheres (Davenport & Inman, 2012).

However, as has been discussed above in 1.6. Research gap, a shortcoming of the theory on states of emergency is linked to its underlying assumption of an existing liberal-democratic infrastructure, fea- turing inter alia functioning state institutions and legal system, a normative commitment to democratic values, and an accountability culture. In this regard, outside a liberal-democratic context, what is deemed justifiable and/or constitutional is often a contingent and contextual matter. For instance, in post-conflict contexts, the general aim might be the transformation of, rather than adherence to, previous unjust legislative provisions (Teitel, 1997). Therefore, additional theories have come to highlight the role of political and social checks as a preventive mechanism against the abuse of emergency powers (Ramraj & Thiruvengadam, 2010). This is an aspect that has also to some extent been addressed by liberal-democratic theory. For instance, Dyzenhaus (2005) attributes a functioning rule of law system to a political struggle that besides placing the law above the political, also provides best practice guid- ance. This argument is further developed through observations of the effectivity of legislative limits on the exercise of power as dependent on “sociology and politics at their back” for their success (Tushnet, 2005: 155). In a similar fashion, the notion of the decisive power as being concentrated to a sovereign 30 can be argued to adopt a more benign role, contrary to the traditional Schmittian conceptualisation of the role as despotic, within a democratic context where an adherence to normative democratic values on the part of the sovereign can be assumed. However, such conclusions are presumably limited to fully functioning and stable democratic structures. In contexts with weakened political structures, the exercise of power, emergency ones included, might be more dependent on politics than on the rule of law, whereas the concentration of power with an authoritarian sovereign cannot be trusted to adhere to nor- mative values and principles beyond mere promises. In this regard, the doctrine of necessity and the principle of proportionality provide tentative normative guidelines for the political observation of states of emergency, deemed equally applicable to contexts of both more and less stable political structures. This is based on the trade-off between human rights and national security, a trade-off that has come to characterise estimations of proportionality and necessity in contemporary states of emergency.

Despite national human rights protection also pre-supposing somewhat functioning state structures and a rather stable political system, the liberal-democratic aspect was not deemed as conditional for its ap- plication as for the theories concerning emergency powers. Rather, the principle of proportionality has been attributed a large applicability scope due to its presence in most international human rights docu- ments, authoritatively defined in the ICCPR’s Article 4(1), which states that:

In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under inter- national law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin (OHCHR, Undated).

Article 4(1) provides for states to derogate from legal obligations (excluding non-derogable rights3) to the “extent required by the situation,” locating proportionality at the core of state justifications regarding infringements of rights. Proportionality is an exercise that pre-supposes an adherence to norms associ- ated with political morality, which in turn places the condition of outmost necessity upon the enactment of emergency powers (Meron, 1987). In times of crisis, necessity – identified as the originary source of law – provides a lens under which the ordinarily unconstitutional is reframed as constitutional if deemed necessary for the survival of the nation. As such, the concept of necessity facilitates the potential legal- isation of measures that might otherwise have been deemed unlawful (Gross & Ní Aoláin, 2006; Agam- ben, 2005). In those instances, it has been suggested that the doctrine of necessity ought to prevail as an independent source of law, or as a meta-styled standard for constitutional drafting. Necessity is further

3 The rights established as non-derogable in declared states of emergency in ICCPR Art 4(2) are as follow: Art. 6 (Right to life), Art. 7 (Prohibition of torture, and of cruel, inhuman, or degrading treatment and punishment), Art. 8(1) and 8(2) (Prohibition of slavery and servitude), Art. 11 (Prohibition on imprisonment for breach of contract), Art. 15 (Prohibition of retroactive criminal law), Art. 16 (The right to legal personality), and Art. 18 (Freedom of thought, conscience, and religion). 31 seen as a vague concept that politically has been conceptualised in different ways. One conceptualisa- tion of necessity follows the line of necessitas non habet legem, which states that in times of crisis, the question regarding the constitutionality of the measures taken remains irrelevant, as necessity has no law. Another conceptualisation looks at necessity as a mechanism for the temporary suspension of laws while refraining from drafting new legislature aimed to replace the suspended laws. Whereas the last conceptualisation leaves the constitutional to the side as it regards necessity as an ex-post justification of any and all measures that were taken (Gross & Ní Aoláin, 2006). Despite their differences, the con- ceptualisations nevertheless generally view necessity as extra-legal to various degrees, which might be interpreted as necessity being able to function without a legal structure. As such, necessity can be said to derive its functionality from the context, underpinning the notion that emergency powers are justified only for so long as the contextual substratum enabling their practice in the first place remains in force.

Thus, a disproportional use of emergency powers can manifest itself in two aspects: scope and duration. Examples of the former include arrests and detentions of political opponents unaffiliated with the iden- tified enemy, or violations of additional rights not provisioned for by emergency powers. Such over- passes are often actioned by the military forces and put the citizenry’ rights at risk (Freeman, 2003). Whereas on the other hand, an abuse in duration would entail making otherwise temporary emergency provisions permanent. An example of this can be a coup d’état at the hands of the military or the exec- utive (Freeman, 2003). For further examples and a clearer typology, refer to Figure 3 below.

The final component of the theory regards the aporia of the perhaps, which sees ambiguity as an element endorsing a likely “otherwise” (Derrida, 2001). Such an “otherwise” is conceptualised as decisions (and by extension sovereignty) that are theorised to perhaps be localised with social actors other than the obvious localities of power, such as the state or the constitutional. Thus, the aporia of the perhaps con- tributes to a re-conceptualisation of the sovereign decision regarding the proportionality principle. In states with a weak democratic structure, the normative weight of the law is undermined by state violence which characterises itself as following the law despite an internal institutionalisation of emergency pow- ers and an external neglect of international law (Agamben, 2005). As such, departing from the notion that a set of laws and judiciary do not themselves act as guarantors of the rule of law (Alford, 2017), the media is identified as a likely “otherwise,” in its capacity as being able to decide upon the proportion- ality of emergency measures on behalf of the population, in so doing reinstating their political voice. The argument for this is two-fold: firstly, the free media’s publicly scrutinising role of governmental actions has been found to prevent impunity to a higher degree than democracy does (Zuleta, 2019), whereas on the other hand, estimations of proportionality require the existence of active, competent, and informed supervision mechanisms, which act at both the national, regional, and international levels (Fitzpatrick, 1994).

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3.4. Frame of analysis The study’s frame of analysis consists of four compiled models informed by the theory presented above in sub-chapter 3.3. The aim of this exegesis is to illustrate the structure of the argument highlighting links between the conceptualisation of emergency powers, the friend-enemy dichotomy, and their ef- fects on human rights.

The first model intends to capture the securitisation process, brought to completion through three steps.

Creation/establishment of Introduction of emergency Breaking free from ordinary an existential threat measures rules and/or law Figure 2. The assumption of separation. Adapted from Williams (2003) and Gross & Ní Aolaín (2006).

The connection between securitisation and human rights violations rests on the fact that identification of an existential threat reflects a Schmittian view of the enemy figure as enabling emergency measures and the tacit suspension of law and “ordinary” politics, which ultimately leads to exclusionary politics. Described as the assumption of separation, the model illustrates the process through which emergency powers are facilitated to the state.

The second model establishes a typology consisting of four ideal types of states of emergency based on identified characteristics of the phenomenon. This model aims to subsequently compare the ideal types to empirical observations.

Situation Political Socio-economic General civil unrest Natural disaster violence crisis4 Responsive Coercive Administrative Derogative Humanitarian measures Conceptualisation Existential Existential/ Disruptive Existential of threat Disruptive State of emergency Repressive Administrative Preventive Reconstructive paradigm Figure 3. Ideal types of the state of emergency. Adapted from Wright (2015) and Valadés (1974).

States of emergency have been identified as existent in four dominant paradigms based on the type of circumstance and the pertinent response featured in a specific context. First out are repressive states of emergency, whereby in times of high political violence, governments respond with particularly forceful means aimed inter alia to contain possible or opposition (Rossiter, 1948; Valadés, 1974). The War on Terror is a relevant example thereof (Ackerman, 2004; Cole, 2004). Secondly, there are administrative states of emergency, whereby the context might feature socio-economic complications in need of administrative or economic responses. The shock doctrine is a relevant example in this regard

4 Particularly concerning underdevelopment. 33

(Klein, 2007). Thirdly, there are preventive states of emergency, whereby states, faced with increasing civil unrest, opt for constitutionally provided measures with the aim to maintain the established legisla- tive order (Valadés, 1974). Lastly, disaster-generated emergencies are often invoked in the aftermath of a natural disaster, a context often requiring a more scientific or technical response (Alemanno, 2011).

The third model illustrates the identified effects placed upon human rights in connection with states of emergency. With a simplifying purpose, these effects have been divided into three categories. Moreo- ver, the doctrine of necessity and the proportionality principle inherent to an understanding of human rights under states of emergency, are tentatively captured through the concept of severity. In this regard, severity is broadly understood in absolute terms, a choice based upon the fact that certain infringements of rights are never permitted, emergency measures notwithstanding.

Effects upon human rights Highest severity level Medium severity level Low severity level Adjustments in allocation Extension in duration, Discharge of the legisla- Executive issue of decrees (ad- of powers authoritarian power-shift tive, military/other spe- ministrative/economic matters) cial courts Infringement of absolute Torture, extra-judicial Restriction on due pro- Incommunicado detention human rights killings, indefinite detent- cess rights, disappear- ion, arbitrary executions ances, secretive trials, confession as evidence, censorship Increasing scope of emer- Long-term extension of Censorship, surveillance, Unlawful detentions and gency derogations non-regulated suspenda- extended detention peri- searches, curfew bility of rights ods Figure 4. Effects of states of emergencies on human rights. Adapted from Fitzpatrick (1994).

Adjustments in allocation of powers: The most characteristic adjustment regards the executive concen- tration of power as well as governance of economic and civil matters based on the executive issue of decrees. In many instances, because of this setup, the legislative is hindered from carrying out its normal role and functions, whereas sometimes the legislative may be discharged in favour of the executive. However, in other instances, the legislative might be able to act as a check on the abusive exercise of emergency powers and/or unjustified or arbitrary prolongation. This is particularly true in contexts where public criticism remains a feasible course of action in society (Fitzpatrick, 1994). Regarding the judiciary, whereas military courts and military jurisdiction in traditionally civilian matters is more char- acteristic of martial law, nevertheless, special courts might be employed in trials of (identified) enemies for instance. In addition, even if the judiciary maintains its attributed functions, key aspects might re- main absent, partly due to an observed tendency of judicial complaisance towards the executive in times of emergency, in autocracies and democracies alike. A hierarchisation of powers can also come to re- place otherwise separated powers, which could for instance result in the military being placed above civilian authority (Fitzpatrick, 1994).

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Infringements of absolute human rights: As acknowledged in the introduction, a correlation exists be- tween human rights violations and states of emergency. Surprisingly, the correlation is particularly ev- ident concerning non-derogable rights.5 Deprivation of life, genocide and torture are arguably the most universal, present in all international human rights treaties, and part of international customary law per jus cogens. Moreover, the norms and principles pertaining to these rights are often clearly specified. Examples of emergency-adherent violations might be loss of life resulting from clandestine killings at the hands of security forces, or arbitrary execution without minimal due process. Meanwhile, torture has been found to occur to a higher degree during states of emergency, to the extent that it is one of the more characteristic human rights violations in emergency contexts together with disappearances, ad- ministrative/incommunicado detention, and secretive trials wherein confessions constitute primary ev- idence (Fitzpatrick, 1994).

Increasing scope of emergency derogations:

The main reason behind an emergency declaration is to activate the necessary provisions for relevant restrictions of certain human rights so as states may not be impeded in their efforts to maintain public order (Criddle, 2016). In this regard, the rights that states most commonly derogate from under states of emergency are the security and liberty of the person, privacy guarantees, freedom of movement, of opinion and of expression, association as well as the right to peaceful assembly (Despouy, 1999). In- creasing derogations, either in number, extent of societal impact, or non-regulated suspendability of rights, constitute an abuse of the scope otherwise attributed to emergency powers (Freeman, 2003; Fitz- patrick, 1994).

The fourth and final model consists of evaluative questions asked of the studied material. The questions have been formulated based on theoretical aspects singled out for testing, refining, or elaboration. They are analytically employed with the aim to further strengthen the link between theory and analysis, but also to concretise it more seeing how a theory pertaining to states of emergency and human rights is rather abstract in nature.

Declaration Measures Supervision

. What reasons have been . Type of suspended rights? . Which supervision mechanisms referenced to? Peremptory rights? remain post-declaration? . Has an existential threat . Invocation of extraordinary powers? . Do they have necessary abilities been identified? E.g., military. to monitor potential abuse of . War-inclined rhetoric? power? . Executively concentrated power? . What is the mechanism’s history

. Reference to administrative or tech- when it comes to acting as a nical measures? check on power abuse?

5 Supra note 3. 35

4. Analysis and results Before embarking upon the following section, a quick detour to the purpose and research questions is done with a recapitulating aim. The research purpose aims to examine the correlation between states of emergency and human rights violations in the cases of Thailand and the Philippines, the results of which are then comparatively analysed. Additional observations aim to capture the motivations underpinning the invocation and use of emergency powers. The questions aimed to be answered are thus as follows:

Under what conditions do states of emergency feature human rights violations? What explains the prevalence of human rights violations within the framework of states of emergency in a Southeast Asian context?

4.1. Thailand The history of states of emergency in Thailand is long, and has throughout featured similar elements, albeit at the hands of different actors. In this regard, the often-reoccurring chain of events entail a coup d’état in tandem with an emergency declaration, most frequently undertaken by the royalist-conservatist faction against the parliamentary democratic system in place. Sometimes the coup is extended by means of an interim constitution later replaced with a new and permanent constitution consolidated through restored electoral politics. However, the chain of events has occasionally been broken as it has been challenged by civilian authority, leading to another coup and state of emergency (Samutwanit, 1982). As such, political instability in Thailand has since 2005 been characterised by colour-coded tensions between the Red and the Yellow political factions. Whereas the former consists of members from the urban and rural classes and is more left-wing in nature, the latter is largely pro-royalist with members from the elite and the upper middle classes (Harding & Leyland, 2012). The genesis of their confronta- tions is pinpointed to ’s ascension to power in 2001. Since then, Shinawatra has explicitly and implicitly wielded large-scale influence, in so much so that the majority of the declared states of emergency were somehow connected to his persona. In the beginning, the same progressive policies granting him and his party a re-election in 2005 were increasingly perceived as a challenge to the royalist-conservative faction (Ferrara, 2015; Dressel, 2010). This discontent was publicly mani- fested through a rhetoric that singled out PM Shinawatra for “selling the nation” while labelling democ- racy and liberalism as the cause of the experienced political instability (Chachavalpongpun, 2010).

This setting has thus facilitated declarations of states of emergency by both the Red and the Yellow factions. Six declarations of state of emergency and one of martial law have taken place – in 2008, 2009, 2010, 2014, and 2020. Moreover, Thailand, complying with its obligations as state party to the ICCPR, timely informed the UN Secretariat of its declarations and adopted measures. 4.1.1. “Thai-ness” and the idea of a state ideology In the beginning of the 1990s, Thailand adopted rather progressive Western-styled policies under a reformative nation-state policy. However, a conservative monarchy argued that excessive acquiescence of Western culture and politics threatened Thai culture, identity, and the authority attributed to the mon- archy (Chachavalpongpun, 2011). This sentiment culminated in the establishment of a state ideology based on a “sacred trinity,” consisting of the monarchy, the nation, and religion (Murashima, 1988). Today, the state ideology remains important as justificative for the monarchy’s hold on power.

4.1.2. Martial Law Act 1914 This law bestows the king with absolute powers to declare nationwide or geographically limited martial law for protecting the stability of the nation (Yano, 1972). The law bestows military forces with uncon- strained provisions superior to those of their civilian counterparts, particularly in matters of national security and protection of the monarchy. The law remains in place today and has acted as a guiding device for the enactment of coups d’état.

4.1.3. Emergency Decree on Public Administration in Emergency Situations 2005 The most relevant legislature in the case of Thailand is the 2005 Emergency Decree, which has outlived three national constitutions: the 1997 Constitution, the 2006 Interim Constitution, and the post-coup 2007 Constitution, respectively. Moreover, all declared states of emergency in modern times have been based upon its provisions. The degree equips authorities with inter alia extensive powers to undertake detentions without charges, seize buildings, seal off locations, use informal detention locations, censor relevant media statements, and lethal and non-lethal law-enforcement devices whereas officials exer- cising power under its framework are often granted immunity (Human Rights Watch, 2020).

4.1.4. Internal Security Act 2008 Formulated as a legal base guiding the activities of the Internal Security Operations Command (ISOC), actor responsible for the policymaking and enforcement of national security. Due to its mandate, the ISOC is positioned under the immediate influence of the military. It consists of two parts, the first equips the ISOC with provisions for the monitoring, observation, and evaluation of relevant information perti- nent to internal security issues, whereas the second part comes into force first upon invocation and vests the ISOC with coercive security-enforcing powers – arrest, detention, and searching provisions, as well as laying criminal charges amongst others (Shaw, Parritt & Wiphatawat, 2010). The powers stipulated therein are thus more narrowly defined and as such place less restrictions upon civil liberties and rights than the Martial Law Act and the Emergency Decree described above.

4.1.5. Prelude – 2007 Constitution In September 2006, widespread protests organised by the Yellow faction against PM Shinawatra cul- minated in his outing by coup d’état, an overthrow justified with reference to the state ideology of Thai- 37 ness being perceived as threatened by the progressive Shinawatra regime (Leyland & Harding, 2009). As response to the coup, an anti-establishment, anti-royalist movement emerged (later attributed to the Red faction) rallying around a protective rhetoric wherein they identified themselves as the protectors of democracy from the “evil” and aristocratic Yellow faction (Chachavalpongpun, 2013). The Interim Constitution of 2006 gave way for the 2007 Constitution, which in turn set the tone for the colour-coded political tensions and states of emergency for the years to come, as many of the provisions were drafted under military auspices and with the anti-establishment, anti-royalist movement in mind.

4.1.6. 2008 – State of emergency declared by the Red faction (incumbent) Shinawatra’s successor party, the PPP (People’s Power Party) won the 2007 elections, causing the Yel- low faction to suspect the new regime as Shinawatra’s puppet and to organise anti-government protests. The protests soon faced counter-protests, quickly escalating into wide-spread violence (Askew, 2010). Subsequently, a state of emergency was declared by the PM, motivating the actions as the very last resort: “I did it to solve the problems of the country […] I had no other choice. The softest means available was an emergency decree to end the situation using the law” (MacKinnon, 2008a). As means to manage the protests, the emergency provisions vested the chief of the army with detention provisions and enabled the deployment of soldiers into the streets. Moreover, censorship provisions were enacted to hinder reports able to possibly “undermine public security,” and a ban on gatherings consisting of more than five people, measures that took a broad sweep at civil liberties (MacKinnon, 2008a). How- ever, contradicting deployment orders, the army desisted the use of emergency prerogatives and re- quested the factions to negotiate forth a solution (Askew, 2010). In this respect, the military can be said to have acted as an “otherwise” supervisory mechanism according to the aporia of the perhaps. In Thai- land, due to a Constitutional Court highly participative in politics, alternative supervisory mechanisms have developed. For instance, in later years the armed forces have acted as a deterrent check on execu- tive powers, drawing their legitimacy from the support they enjoy from a large part of Thai society (Chambers, 2010). This can further be connected to the aporia of the perhaps wherein society rediscov- ers its political voice through alternative sources of sovereignty. Ultimately the Constitutional Court brought the stand-off to an end and stabilised the situation through the dismissal of the PM, upon which was appointed new PM. Promptly after, he lifted the state of emergency. However, being Shinawatra’s brother-in-law, Wongsawat was not accepted as PM by the Yellow faction, who reframed and continued their protests. As the protesters blocked ’s two main international air- ports, the situation escalated and culminated in another state of emergency (MacKinnon, 2008b). Fol- lowing the steps of his predecessor, Wongsawat deployed the military to disband the protesters, how- ever, the army remained opposed. Once again, the Constitutional Court was the stabilising force, dis- missing the PM, and going further by disintegrating the PPP. In this regard, it could be argued that power was centralised to the Court, correlating with the notion of adjustment on the allocation of power 38 during emergencies. Moreover, the Court, in its capacity as a Yellow-leaning actor, can be said to have perceived the Red faction government as the exception to what the Yellow faction saw as the norm, and acted thereafter. Due to a heavy reliance on the Court, and failure to deploy the army, this state of emergency can be categorised as administrative in nature featuring some attempted coercive elements from the repressive paradigm.

4.1.7. 2009 – State of Emergency declared by the Yellow faction (incumbent) After the disintegration of the PPP, a new government was instilled at the persuasion of the palace and the military. The newly appointed PM, , was leader of the DP party, which counted with major support in the Yellow areas of the country. Inversely, the Red faction’s discontent began to simmer and eventually culminated in violent protests in March 2009 after former PM Shinawatra, who was outed from his post in 2006, indirectly accused the palace of staging the 2006 coup in a live broad- cast (Askew, 2010). The Red faction, already viewing the incumbent regime as product of a silenced coup d’état, quickly rallied in support of Shinawatra, demanding the resignment of incumbent PM Vej- jajiva. The protests expanded beyond Bangkok when the protests targeted the Fourth resulting in its cancellation and the declaration of a state of emergency (Petty, 2009; Farrelly, 2009). Upon declaration, PM Vejjajiva motivated the government’s chosen course of action as a wish to “return the country to normality.” Moreover, he further asserted the regime’s commitment while appealing for popular support on the matter: “The government will try every way to prevent further damage. I ask the people to support the government in order to restore order in the country.” (Tran, 2009). As such, this can be seen as a preventive state of emergency, featuring attempts to solve a potentially escalating sit- uation, in this case civil disobedience (Harvey, 2010). The perceived threat was not existential, seeing how the Yellow faction held a more intricately institutionalised power than their opposition did in 2008, but rather potentially disrupting. The invoked emergency measures prohibited certain media reports deemed as threatening to the res publica, banned gatherings of more than five people, and vested pro- visions for the maintenance of public order upon the armed forces. In matters concerning the latter, the PM also emphasised the need for military support: “Police and military officers must fully and force- fully carry out their jobs, lest more damage is done. […] Actions must be taken promptly, and order be restored as soon as possible. Your superiors and I will take responsibility for all your actions” (Tran, 2009). As such, contrary to the 2008 state of emergency, the military stated a predisposition to employ forceful means if deemed necessary, which later materialised through coercive means such as the use of live bullets and tear gas, eventually leading to the dispersal of the protesters. This can be said to support the notion of emergency powers as guarantor of immunity by legally endorsing violence at the expense of the individual and her rights. Moreover, a public declaration of military immunity guarantees can be said to undermine alternative supervising actors, especially in the Thai context where the military historically has played a more dominant role in domestic politics (Ramraj & Thiruvengadam, 2010). 39

The movement was not completely dismissed though, as at the end of 2009, sporadic protests were organised against PM Vejjajiva, prompting him to invoke the Internal Security Act in response, a more benign preventive measure than the 2005 Emergency Decree, seeing how the latter often aims at the total dissolution of movements of protest.

4.1.8. 2010 – State of Emergency declared by the Yellow faction (incumbent) Between March and May 2010, the residual protests from the year before ultimately escalated into large and violent clashes, featuring military crackdowns and a declaration of a state of emergency with the aim “to quickly resolve and put an end to the situation of turmoil as well as to restore normalcy in the country” (United Nations, 2010). As such, the purpose of emergency powers is framed within the norm- exception dichotomy, and mirrors Schmitt’s argument of the sovereign power being that which decides upon the exception. Technically speaking, seeing how PM Vejjajiva was appointed by the proportion of the political leadership that remained after the outing of the Red-faction regime, his position could be considered the exception. As such, this illustration of a state of perpetual change concerning the significance attributed to the exception and/or the norm, further exemplifies how the significance of that which constitutes the exception and the norm changes post-declaration (Gross & Ní Aoláin, 2006)

Informing the UN Secretariat of the declared emergency, the Thai government motivated its actions with reference to the disruptions of public order such as “leading to disorder within the country through incitement and instigation by verbal and other communicative means – which is inconsistent with the purposes of the Constitution and the law” (United Nations, 2010). In this way, by classifying the rioters’ actions as unlawful, protesters are securitised as equally unlawful, which in turn legitimises the use of emergency measures: “Such actions by these groups are not peaceful assembly and contravene the pro- visions of the law and the Constitution, having impact on the administration of the state and confidence in the economy and affecting public order, state security as well as the democratic development process and the exercise of rights and liberties of innocent people” (United Nations, 2010). What regards the attribution to “innocent people” state actions can be said to be justified insomuch as being framed within a legal basis and placed within “ordinary” governmental actions, seeing how the protection of citizens is a function attributed to the state. On the other hand, the attribution to the national confidence on the economy can in this context and at the observed point in time be said to constitute an existential threat, seeing how the state of emergency was declared in the proximate aftermath of the 2008 economic crisis, which hit Thailand the worst of all countries in Southeast Asia. This might be said to introduce an administrative dimension into the emergency while also likely influenced the government’s need to portray a strong front, particularly important as elections were upcoming, whereby the future existence of the incumbent’s term is decided. Moreover, concerning the securitisation process, conceptualising enemy actions as anti-legal together with the harm they are perceived to cause upon society, can be identified as that which informs and sanctions the usage of all means necessary for its resolution. In this 40 regard, the description of the enemy conveys the notion of a held ill-intention against the government on the part of the rioters. Furthermore, in the Thai context, phrasing pertaining to ill-intentioned people are in Yellow faction rhetoric often used as code for the Red faction (, 2010), something that can be said to place the construction of the enemy along the already politicised lines, which arguably leads to a more polarised portrayal of the antagonist. By pushing the enemy figure to its extremes, the Red faction is rhetorically portrayed as an outlying exception, despite pertaining to the norm in its role as political opposition supported by large sectors of society. For instance, in the elections later held in December that year, the opposition received approximately 40% of the votes, despite an incarcerated leader (The Economist, 2010). As such, one of the most encompassing and rapidly imposed measures was the suspension of the television channel used by the protest movement (Ferrara, 2011). Moreover, on a more physical dimension, attempts carried out by the military to disperse the protests escalated violently into the use of live bullets, explosives, and tear gas, resulting in several deaths (Harvey, 2010b). From there on, the measures increased in strength, and by extension also disproportionally, mirroring the Schmittian societal intensity through which national security is crystallised. For instance, sniper attacks attributed to the armed forces were recorded in May 2010, month which also saw the deployment of troops and tanks into civilian spheres, as well as clashes with protesters, some resulting in several deaths, injuries, and the burning of buildings (Terwiel, 2011). Moreover, the imposition of a curfew in tandem with increasing records of civilian deaths, arrests, and detentions, especially those carried out in presumed safe havens such as temples, resulted in a conceptualisation of PM Vejjajiva along friend- enemy dichotomic lines, singling him out as an “assassin” (Connors, 2011). Proportionality-wise, this can be said to point to the disequilibrium between public law and political act, or between that which is publicly proclaimed, and the actual undertaken measures. The state of emergency was later terminated in December 2010 and was largely both preventive and administrative in nature with disproportionately coercive measures.

4.1.9. 2014 – State of emergency declared by the Red faction (incumbent) The Red faction and , sister to outed PM Thaksin Shinawatra, won the 2011 elec- tions. By the end of 2013, her regime proposed an Amnesty Bill, which would grant amnesty to actors attributed to political violence since the 2006 coup d’état. This was ill-received news for both the Yellow and the Red factions. Whereas the former argued that such an amnesty would abolish the standing cor- ruption charges against Thaksin Shinawatra, the latter stated that the amnesty would not hold the mili- tary or former PM Vejjajiva accountable for their actions in 2010 (Kongkirati, 2016). This led to protests led by the Yellow faction. While the protests in their onset were against the proposed bill, they later adopted the role of guardians of the state ideology, labelled democracy as corrupt, and called for the instalment of a People’s Council citing a need for national “reformation” (Thompson, 2015). Since such an instalment would only be plausible through a coup d’état, soon yet another political crisis occurred, 41 prompting PM Shinawatra to invoke the Internal Security Act in November 2013 while simultaneously dissolving Parliament and calling for new elections in February 2014 (Kongkirati, 2014). Despite this, the Yellow faction continued its by now anti-election protests, which culminated with break-ins into governmental offices. In January 2014, a state of emergency was declared pointing to the “turmoil or defiance amongst the public [resulting] in unrest in many locations,” which it was argued “instigated the public to rally unlawfully, blocking traffic on major roads, trespassing and occupying many govern- ment offices, driving out civil servants, employees or state officials from government offices, cutting off water and electrical supplies, shutting down database systems, chaining gates so that civil servants, employees or state officials cannot provide normal governmental services to the public” (United Na- tions, 2014a). The reference to the normal functioning of the state together with the listing of adminis- trative issues in need of state attention would theoretically label this state of emergency as administra- tive in nature, enacted against socio-economic concerns. The threat faced by the state can be deemed somewhat existential given that other governmental institutions were hindered from normal functions. Moreover, the emergency was declared in close connection to elections, the outcome of which would have influential repercussions upon the state. As such, that which is to be saved and/or protected is the continued administrative functioning of state, which by definition would turn those impeding state func- tions into its enemies as they would be “causing disturbance, delays and economic loss” (United Na- tions, 2014a). The figure of the enemy was further polarised as unlawful whose equally unlawful actions to “obtain state administrative power by means which is inconsistent with the provisions of the Consti- tution of the Kingdom of Thailand and of the law,” eventually would threaten “all rights and sovereignty of the Thai people as guaranteed both expressively and implicitly by the Constitution” (United Nations, 2014a). In this regard, an interesting aspect lifted by the declaration is the concept of sovereignty, which is a highly threatening concept to lose, especially in a context such as the Thai, with a history of frequent military rule. As such, the declaration could be argued to equalise civil rights with sovereignty, and extendedly with national security, which would entail a more acute need for effective countermeasures. This is further elaborated upon in the declaration, which states that “increasing breaches of law [lead] to believe that violent actions will be carried out, which will more seriously affect national security so as to cause unrest in the country and inflict harm or danger to the lives, bodies, and properties of innocent people” (United Nations, 2014). This also partly points to the perceived effectivity of the invoked pow- ers, seeing how vital matters such as civil rights or sovereignty are put at stake, incidentally justifying actions such as “passing, enforcing and interpreting all laws, as well as using certain facilities to dis- seminate distorted information to cause misunderstanding so as to instigate actions to cause unrest in various locations” (United Nations, 2014a) In this respect, despite the invoked emergency powers fea- turing the very same provisions of the powers invoked earlier in 2010, the military, under the leadership

42 of pro-monarchy commander Prayuth Chan-ocha, abstained from dispersing the Yellow faction’s pro- tests. Moreover, the television channel used by the Yellow faction was not suspended, signifying a continued dissemination of their rhetoric and point of view (Temphairojana, 2014). This further illus- trates how despite the legal provisions remaining the same from case to case, their practical enactment can present significant differences depending on the context.

On the day of the election, anti-government protesters blocked several polling stations, arguing that before elections could take place, the system needed a reform (BBC, 2014). The protests were met with countermeasures, something that the leader of the Yellow faction cited when filing a case against the incumbent government, arguing that the enactment of emergency powers hindered the protesters from fully exercising their constitutionally guaranteed right to free assembly. While the verdict did not call for the annulment of the state of emergency, it nevertheless constrained its measures. For instance, it became prohibited to “launch a crackdown on anti-government protesters, dismantle barricades erected by the protesters, evacuate or seal off protest areas” (Khaosod English, 2014). Particularly, governmen- tal restrictions on political gatherings were banned, which arguably is among the most relevant provi- sions in the 2005 Emergency Decree. Thus, the government found itself toolless in the face of mounting protests and violence, leading to the invocation of the Internal Security Act as alternative solution.

4.1.10. 2014 – Martial law (Yellow-faction supported) Shortly thereafter, the Constitutional Court found PM Yingluck Shinawatra guilty of patronage and demanded her resignation, thereby creating a power vacuum (Chen & Harding, 2018). As a result, on May 2014, army commander Chan-ocha stepped in and declared a nationwide martial law “to ensure an effective maintenance of peace and order, solely on the grounds of affording vital national security protection” (United Nations, 2014b). Although not an explicit state of emergency, seeing how martial law provisions allow for an indiscriminate use of powers against internal riots and/or rebellion, it does not permit the use of measures that fall outside the scope of the regular legal process, which would classify martial law as more preventive than punitive (Dicey, 1982; Pollock, 1902). This can be said to be further exemplified by the derogations from the ICCPR adopted under the canopy of martial law:

Article 12(1), by the announcement of a curfew which was lifted on 13 June 2014; Article 14 (5), only where a jurisdiction has been conferred to the Martial Court over Sections 107-112 of the Penal Code and the offences against the internal security of the Kingdom; Article 19, by the prohi- bition of broadcasting or publishing certain content, particularly those inciting conflict and aliena- tion in society, false or provoking messages, and Article 21, by the limitation of political gathering. These restrictions are under constant review and are progressively lifted (United Nations, 2014b). Martial rule eventually replaced the 2007 Constitution with the 2014 Interim Constitution and also saw the forming of the National Council for Peace and Order, a junta with commander Chan-ocha as its leader. The new interim constitution vested the junta with almost any power deemed necessary vis-à- vis challenges to security and the state ideology (Montesano, Chong & Heng, 2019). This resulted in

43 harsher measures against protesters, such as detention orders and the comeback of criminal charges based on lèse-majesté legislation, wherein critique of the monarchy is heavily sanctioned. Martial law provisions were lifted in early 2019 and can be seen as a more extreme expression of a repressive emer- gency paradigm.

4.1.11. 2020– State of emergency (Covid-19) Thailand became the first country to register Covid-19 infections outside of mainland China in early 2020, and promptly followed with the declaration of a nationwide state of emergency in March 2020. The motivation behind its declaration pointed to the labelling of Covid-19 as a global pandemic, and to a social propensity to hoard basic consumer goods, which incidentally rendered the virus threatening to “public order and the safety of people necessitating stringent and urgent measures to prevent widespread transmission” (United Nations, 2020). Pertaining to its obligations under the ICCPR, Thailand opted to derogate from “particularly Art. 12”(freedom of movement) while also emphasising that the “measures adopted are strictly required by the exigencies of the situation, are not inconsistent with other obligations under international law, and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin” (United Nations, 2020). In this regard, some of the adopted measures included the prohibition to “assemble, carry out activities, gather at any place that is crowded, or commit any act which may cause unrest in areas determined responsible for remedying the emergency situation on matters related to security.”

The measures have been criticised by some human rights organisations, in particular Amnesty Interna- tional (Amnesty International, 2020), which in April prompted a response from the government stating that “any measures that might inconvenience the daily lives of our citizens are only temporary […] to guarantee public safety and prevent widespread panic from the dissemination of false and distorted information that could further distress the lives and welfare of citizens. Most importantly, there are no restrictions on the freedom of the press. The Government has consistently implemented measures that are balanced and proportionate with the situation and tried to avoid any excessive actions” (Ministry of Foreign Affairs Kingdom of Thailand, 2020).

A Covid-19-informed state of emergency pertains fully to a natural disaster and reconstructive para- digm, featuring coercive measures. Moreover, the emphasis put on the maintained freedom of the media further strengthens the perception of media as an alternative supervisory power of high efficiency.

4.1.12. 2020 – Severe State of Emergency In March 2019, the first elections in eight years were held, in which the progressive party Future For- ward, popular with Thailand’s younger generation of voters, won thirty constituency seats, making it a political force to be reckoned with. In February 2020, however, the Constitutional Court ruled to ban the Future Forward party on corruption charges, a decision met with widespread protests. The protests

44 were brought to a halt due to Covid-19-related restrictions, but resumed around July 2020 (Ratcliffe, 2020a). Part of a student-led pro-democracy movement, the protests advocated for ground-breaking demands such as amendment to the 2007 Constitution to ensure a democratic legislature, reformations to the monarchy to better ensure accountability thereof, and for the government to step down (, 2021).

Article 112 of the Thai Criminal Code, the so-called lèse-majesté law, can be said to be that which spurred the declaration of a severe state of emergency in October 2020. According to this law, insults to the monarchy are punishable by law. It had not been used since 2018, but was re-invoked, allegedly at the King’s request, in view of the increasing scope of the protests (Ratcliffe, 2020b). The state of emergency was declared after a royal motorcade in Bangkok was met with non-violent protest signs in lieu of the otherwise dictated reverence. In response to this, emergency measures were invoked to “en- sure peace and order and to prevent further incidents after protesters affected the royal motorcade and violated the monarchy with provocative language” (Ratcliffe, 2020). Other considerations cited in- cluded economic and national security (Reed, 2020). The emergency was described as “severe” to dis- tinguish it from the Covid-19 state of emergency, while also alluding to perceived disturbances as con- travening the constitution and harming public safety regarding Covid-19 risks (Strangio, 2020).

Measures included bans on gatherings of more than four people, restrictions on civilians from entering any designated area, as well as bans on “the publication of news, other media, and electronic information containing messages that could create fear or intentionally distort information, creating misunderstand- ing that will affect national security or peace and order” (Strangio, 2020). Under its provisions, dozens of people were arrested, the imposed emergency measures enabling the detention of protesters without charge for up to thirty days, and without access to neither family nor legal assistance/counsel (Ratcliffe, 2020c). Especially incarceration provisions can thus be classified as disproportionate, seeing how they infer incommunicado detention and have been described as “unchecked powers to suppress fundamental freedoms ensuring zero accountability for officials” (Human Rights Watch, 2020). The emergency de- cree did also enable the use of water cannons, tear gas and other irritants against protesters (Yuda, 2020). Eventually, after continued pressure and protests, on October 22, approximately a week after its decla- ration, the state of emergency was lifted (Rojanaphruk, 2020).

Whereas the state of emergency can be said to pertain to a repressive paradigm insomuch as they were enacted against political violence, an additional observation is that under the canopy of Covid-19, al- ready narrowed human rights were further striped down to their bare essentials. This constitutes a coer- cive tendency which can be telling of emergency powers in a post-pandemic context.

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4.1.13. General observations What a case study of states of emergency in Thailand largely observes are longstanding tensions of political legitimacy – between a more traditional authority (Thai-ness) vis-à-vis attempts to install and consolidate a liberal-democratic constitutional system. The tensions have repeated times triggered both the Red and the Yellow political blocs to declare a state of emergency against one another as means to address the arising political instability and maintain what each side perceives as the norm. The second observation concerns how the protracted tensions have resulted in a more sophisticated conceptualisa- tion of the enemy figure. As such, when distinguishing the “enemy” in the Thai context, two alternatives have prevailed: those considered to be anti-Thai, and those considered to be un-Thai (Streckfuss, 2014). Furthermore, these alternatives are formulated with the norm-exception dichotomy as reference, mean- ing that the distinguishment of what constitutes a normal situation is premised on the identification of what is Thai, a concept often attributed to, and based upon, the idea presented by the state ideology, which places the monarch at the axis of national stability. In this regard, the identification of someone as being anti-Thai might be predicated upon the state ideology being threatened, often by foreign liberal- democratic concepts, especially parliamentarism. Connected to this, the notion of being un-Thai would be used to identify someone hindering or challenging the consolidation of the state ideology. As such, the “un-“and “anti-“ prefixes effectively place the enemy figure at the margins of the general community in a Schmittian friend-enemy dichotomy. Consequently, the enmity attributed to affected individuals bereaves them of legal status and justifies emergency actions against them, seeing how tensions are formulated as a balance between “their rights” and “our security.” On the other side of the deep colour- coded divisions is the Red faction, whose emergency powers have often been undermined by intrinsi- cally Yellow-guided institutions. The faction’s declared states of emergency can be argued to have been invoked with more defensive purposes in response to anti-government protests, as such framing the enemy figure as a force intent on disrupting the incumbent regime.

Furthermore, the ideological discrepancies, and the corrosive political dichotomies ingrained in the mu- tual socio-economic gap remains an important element informing the third observation of how the rise and expansion of the middle-class developed into an alternative check on the exercise of emergency powers. The more the Yellow faction attempted to consolidate a hegemonic state ideology through emergency powers, the stronger the opposition would hold onto liberal-democratic demands, informing the correlation that the louder the demands for liberal democracy, the harder it is to legitimise the invo- cation of extraordinary emergency powers. As such, continued states of emergency would exponentially raise questions and doubts regarding their purpose, illustrating the general perspective regarding emer- gency powers as an instrument to be used against potential political opposition and/or dissent (Lee, 2002). Furthermore, prolonged measures came to face high popular resistance in tandem with demands for liberal-democratic constitutionalism, in most instances resulting in emergency measures being lifted. 46

In this regard, the royalist-conservatist faction can arguably be located at the brink of existentialism, counting with an increasingly waning public support for each passing election. For instance, juxtaposing the Red-faction’s electively sustained powers opposite the Yellow-faction acquiring powers with non- elective means such as coups or power vacuums. As such, the increasing existential insecurity perceived by the Yellow faction can be said to have informed and justified the invocation of the self-enacted state of emergency, and the induced failure of the Red-faction’s emergency powers. In this sense, the state of emergency can be considered politically clouded (Agamben, 2005).

As a result thereof, in a context featuring a gravitational pull between authoritarian and liberal-demo- cratic tendencies, the realisation of the ideal of human rights and civil liberties for the citizenry becomes a problematic question. In this regard, Thai national identity remains a problematic as well as a rather underdeveloped issue, which results in weak political structures, which in turn are that which protects and guarantees human rights. In this regard, Agamben (2005) highlights how a contested national iden- tity enables the curtailment of human rights through the exercise of emergency powers. Connected to this, a continued social dissatisfaction further illustrates how that which is expected of human rights in political situations constrained by law remains a complex and unsettled matter.

4.2. The Philippines The Philippines has a complex history vis-à-vis states of emergency and emergency powers, the legacy of which still informs their enactment in modern times. From a legislative perspective, the Constitution of the Philippines vests the President with emergency provisions that increase in severity, ranging from calling on the armed forces, to the suspension of habeas corpus (which would amongst others authorise detentions sans warrants) and the invocation of martial law. Whereas the military can be called on a rather ad-hoc basis, the other two powers are conditional upon public safety, requiring the occurrence of rebellion and/or invasion to be considered justifiably applicable (Albert & Roznai, 2020). Moreover, when it comes to crises of an economic nature, the Constitution provides for invocation of emergency powers enabling the state to “temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest” (Pangalangan, 2016: 299).

The setup is designed aiming to prevent a hijacking of the constitution at the hands of arbitrary powers. In this regard, besides a state of emergency, declarations of state of rebellion have taken place. The state of rebellion is a form of martial law suspending certain civil rights, targeting the suppression of protests and aim to prevent coup attempts. Part of its provisions include detention and arrest, search of private property, and surveillance of personal correspondence without the need of a warrant. The difference of a state of rebellion vis-à-vis martial law is that the government remains under civilian administration, with the military as protection from potential clashes with rebels. The rather unique name of state of

47 rebellion is attributed to a negative past connotation concerning martial law, as former President Ferdi- nand Marcos ruled for nine years under martial law (Villanueva, 2001).

Contrary to Thailand, the Philippines has not informed the UN Secretariat of any of its declared states of emergency.

4.2.1. 2001 – Proclamation 38 (State of Rebellion) In January 2001, President was demoted over corruption allegations, which were in April followed by his arrest upon corruption charges (The Guardian, 2001). The arrest triggered days- long protests by Estrada supporters culminating in assaults and the attempt to storm Malacañang Palace (the presidential residence). In response to the “the angry and violent mob, armed with explosives, fire- arms, bladed weapons, clubs, stones and other deadly weapons,” President Gloria Macapagal-Arroyo issued Proclamation 38 on 1 May stating that “by virtue of the powers vested in me by law hereby recognise and confirm the existence of an actual and on-going rebellion compelling me to declare a state of rebellion” (Official Gazette of the Republic of the Philippines, 2001). The proclamation was moti- vated upon the mob’s purpose of “plotting to bring down the legitimate government so they would establish their own junta” (Villanueva, 2001). In conjunction with the proclamation, General Order No. 1 was issued, according to which the armed forces were called upon “to suppress and quell the rebellion” (Official Gazette of the Republic of the Philippines, 2001).

The invocation of a plausible future junta as a looming threat can be described as an effective securiti- sation technique in the context of the Philippines, partly evidenced in how the emergency provisions enabled the arrest of protest leaders on grounds such as “wilfully, unlawfully, and feloniously promote, maintain, direct, speak for, head or perform similar acts on behalf of the pro-Estrada demonstrators to rise publicly and take arms against the Government of the Republic of the Philippines” (Official Gazette of the Republic of the Philippines, 2001). Approximately a week later, the State of Rebellion was lifted. This instance of emergency powers can thus mainly be classified as part of the preventive paradigm.

4.2.2. 2003 – Proclamation 427 (State of Rebellion) End of July 2003, approximately 300 officers from the armed forces and the national police occupied the Oakwood Premier Serviced Apartments with the purpose of airing their grievances, which included allegations of corruption by the Arroyo administration together with accusations of President Arroyo intending to prolong her term (ending in June 2004) through the declaration of martial law (Curato, 2011; Landingin, 2003). Among the demands were the resignation of the President, the Chief of the National Police, and the Secretary of Defence (Albert & Roznai, 2020).

In response to these actions, the same day a state of rebellion was declared as means to deal with “certain misguided elements of the Armed Forces armed with high-powered firearms and explosives [who] seized a building, put bombs in the area, publicly declared withdrawal of support for, and took arms 48 against the duly constituted Government, and continue to show open hostility.” In connection to that proclamation, General Order No. 4 was issued, which called the armed forces and the national police to “immediately carry out the necessary actions and measures to suppress and quell the rebellion with due regard to constitutional rights” (Official Gazette of the Republic of the Philippines, 2003). In this regard, it is interesting to observe how the invocation of martial law is that which the country is to be protected from, albeit through extraordinary measures reminiscent of martial powers. Pertaining to the human rights perspective, despite its official declaration, a state of rebellion is arguably not a full-fledged state of emergency due to the former’s lack of established human rights derogations. In this light, the formu- lation “with due regard to constitutional rights” constitutes an interesting choice of words, the legality of which can be illustrated in how the siege of Oakwood Premier culminated in negotiations. It can be further exemplified in how President Arroyo upon dissolution of the siege stated that “I assure the world that this event does not in any way injure our national security and political stability. The issues involved are domestic, operational, or administrative. They do not involve fundamental or policy areas” (Landingin, 2003). As such, this declaration could partly be categorised as a mix between the preventive and the administrative paradigms of emergencies, seeing how the threat is conceived in disruptive terms largely threatening administrative state functions. On 11 August 2003, the state of rebellion was lifted.

4.2.3. 2006 – Proclamation 1017 (State of emergency) A state of emergency was declared on 24 February 2006 through Proclamation No.1017 and was di- rected against a presumed coup attempt organised by “elements in the political opposition conspiring with authoritarians of the extreme Left and the extreme Right, represented by military adventurists – the historical enemies of the democratic Philippine State” (Official Gazette of the Republic of the Phil- ippines, 2006). Upon declaration, President Arroyo stated that the country was facing a “clear threat,” seeing how the attempted coup was “hurting the Philippine State by obstructing governance including hindering the growth of the economy and sabotaging the people’s confidence in government and their faith in the future of this country.” (Official Gazette of the Republic of the Philippines, 2006). An inter- esting aspect in this regard pertains to a historical-deterministic framing of the enemy figure, which when juxtaposed to the country’s dictatorial past, quickly raises the perceived severity of the threat posed by said enemy. This stance was clearly illustrated by President Arroyo’s warning “against those who threaten the government… the whole weight of the law will fall on your treason” (Official Gazette of the Republic of the Philippines, 2006; The Guardian, 2006).

In conjunction with Proclamation 1017, General Order No. 5 was issued, requiring the armed forces and national police to undertake necessary measures and appropriate actions to “maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of in- surrection or rebellion, and to enforce obedience to all the laws and to all decrees, orders and regula- tions” (Philippine Daily Inquirer, 2016). In this regard, the comparatively harsh provisions vested upon 49 law-enforcement forces are directly attributed to notions of a martial past ignited by the attempted coup, heightening the state’s sense of vulnerability and perceived prospects of a continued existence. Lifted a week after declaration, the state of emergency can be categorised according to a repressive paradigm.

4.2.4. 2009 – Proclamation 1946 (State of emergency) & Proclamation 1959 (Martial law) In November 2009, 58 people were killed in the so-called Ampatuan massacre, the fatal culmination of pre-election violence in central Mindanao. The situation prompted President Arroyo to declare a state of emergency in the affected provinces through Proclamation 1946 with the purpose to “prevent and suppress the occurrence of similar other incidents of lawless violence in Central Mindanao.” The proc- lamation placed the armed forces and the national police under orders to “undertake such measures as may be allowed by Constitution and by law to prevent and suppress all incidents of lawless violence” (Official Gazette of the Republic of the Philippines, 2009a).

Shortly thereafter, in December, martial law and the adherent suspension of habeas corpus was declared through Proclamation 1959 alluding to how “the condition of peace and order in the province of Magu- indanao has deteriorated to the extent that the local judicial system and other government mechanisms in the province are not functioning thus endangering public safety” (Official Gazette of the Republic of the Philippines, 2009b). This constituted the first time that civil liberties were curtailed since the dicta- torship of in the 1970s-1980s. The political clan accused of the Ampatuan massacre was also accused of plotting a rebellion so as to avoid imprisonment and accountability, and thus became the primary target of martial law provisions, as dozens of suspects were subject to warrantless arrests and rebellion charges (Beaumont, 2009). Martial law was lifted eight days later, whereas the state of emergency remained in place. The revocation of martial law has been attributed to the widespread crit- icism stating that its declaration was unconstitutional, as martial law can only be declared upon foreign invasion or rebellion, requirements which arguably were not present in the situation at hand (Conde, 2009). As such, politics can be attributed a rather large supervisory role vis-à-vis the exercise of emer- gency powers, a conclusion based on the notion of political costs that might imposed on governments’ unjustified exercise of emergency powers, even in circumstances where emergency powers are available and partly justified for (Ramraj & Thiruvengadam, 2010).

The state of emergency can be said to be a mix of preventive and repressive measures, preventive since a respect for civil rights and liberties were largely endorsed, and repressive since that which had to be prevented (rebellion) was deemed as too existential a threat. This conceptualisation of the threat can also be said to bear historical-institutionalist tendencies as the last rebellion in the region resulted in a protracted internal armed conflict which saw the involvement of several international actors. This can be said to further illuminate the argument presented by Huysmans (2008), that formation of the emer- gency is not so much based on the actual danger, as on its securitisation.

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4.2.5. 2016 – Proclamation 55 (State of national emergency) On 4 September 2016, partly in response to a bombing incident in Davao City (President Duterte’s hometown) a state of national emergency was declared alluding to the “spate of violent and lawless acts, including abductions, hostage-takings and murder of innocent civilians and media people, bombing of power transmission facilities, attacks on military outposts and mass jailbreaks” as well as to the fact that “the valiant efforts of our police and armed forces to quell this armed lawlessness have been met with stiff resistance, resulting in several casualties on the part of the government forces” (Official Gazette of the Republic of the Philippines, 2016). The actors behind the inferred violence were referred to as “law- less groups” who posed a threat to the country seeing how “the foregoing acts of violence exhibit the audacity and propensity of these armed lawless groups to defy the rule of law, sow anarchy, and sabo- tage the government’s economic development and peace efforts.” This propensity for lawless violence was in turn addressed in governmental intelligence reports, which concluded that “there exist credible threats of further terror attacks and other similar acts of violence by lawless elements in other parts of the country, including metropolitan areas.” In this regard, the military was asked to “undertake such measures as may be permitted by the Constitution and existing laws to suppress any and all forms of lawless violence and to prevent such lawless violence from spreading and escalating, with due regard to the fundamental civil and political rights of our citizens” (Official Gazette of the Republic of the Philippines, 2016).

The violent state actions undertaken against the background of the War on Drugs can be said to capture the degree of severity attributed to the threat by the state, evidenced in how violent and political coun- termeasures are enacted at the individual protester’s level. In this case, the political declaration of a state of emergency constructed its legitimacy by tapping into an exceptional understanding of the law, wherein the individual citizen is detached from rights, power, and liberties. In this regard, it can be said that security is achieved at the expense of a state abstention from guaranteed protections (Cash, 2009).

The state of emergency was established for an indefinitely period of time and pertains to a highly re- pressive paradigm.

4.2.6. 2020 – State of emergency (Covid-19) In March 2020, in response to increasing numbers of Covid-19 cases, a state of public health emergency was declared through Proclamation 922 stating that “the outbreak of Covid-19 constitutes an emergency that threatens national security” (Official Gazette of the Republic of the Philippines, 2020). According to the provisions stipulated therein “all government agencies are to render full assistance and coopera- tion and mobilise the necessary resources to undertake critical, urgent, and appropriate response and measures in a timely manner to curtail and eliminate the Covid-19 threat” whereas the general public was urged to “act within the bounds of the law and to comply with the lawful directives and advisories”

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(Official Gazette of the Republic of the Philippines, 2020). The proclamation was followed by the im- position of an enhanced community quarantine (ECQ), or effective lockdowns.

Shortly thereafter, a six-month long state of calamity was declared through Proclamation 929, which provided various government sectors with appropriate funding in their response efforts (de Jesus, 2020). Furthermore, on the 23 March, Congress approved Republic Act 11469, which was promptly signed into law and vested the president with certain emergency powers limited to three months. It informed the launch of a large-scale aid programme, consisting inter alia of mobilisation of basic goods to indi- viduals and communities affected by the lockdowns and redirection of funding to affected sectors (South China Morning Post, 2020). Since March 2020 and throughout the pandemic, the scope and/or severity of the imposed lockdowns have varied, while most have been established on case-by-case basis.

Furthermore, the economic aspect can be said to constitute a threat to the state, seeing how its Covid- 19-related recession is the first one the country has endured in 29 years, cutting short its pre-pandemic status as one of Asia’s fastest growing economies (Dela Cruz & Morales, 2020). These aspects place the state of emergency in both the administrative and restorative paradigms of emergency, seeing how the presented threat is mainly administrative or technical in nature. However, when juxtaposing the 2020 state of emergency against the background of the War on Drugs, the checks and balances have seen a sharp decline, as the power has been increasingly concentrated upon the executive, whereas the judiciary does not fully undertake deliberate supervisory action (Atienza et.al., 2020). As such, some repressively enacted emergency powers have also been featured in the observed context.

4.2.7. General observations Despite hardwired controls for an arbitrary exercise of power in the Constitution, the discretionary pow- ers attributed to the President concerning decisions to invoke the military constitutes a challenge for its justification. Not only as it leaves the necessity concept to presidential interpretation, but also because the decision of whether the invocation of the military had a factual basis or not is left to the judicial, whose de facto influence is re-allocated towards the executive in times of emergency.

This setup might cause contradictory and potentially clashing views among the citizenry, especially since the discretionary powers vested upon the President can be interpreted as an organically formulated power of the prerogative, which assumes the public’s ex-ante acquiescence. As such, the governmental disposition to declare states of emergency has been challenged as attempting to invoke emergency measures while avoiding the constitutional checks that come attached to the declaration of martial law, the invocation of which can be framed as a disequilibrium of juridico-political proportions. In this re- gard, political life is polluted through violence-dictated and formulated power, i.e., according to a frame- work where law perceives itself as the constituent power (Agamben, 2005). In this respect, historical determination has been observed as an alternative and effective check on emergency powers in the

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Philippines, where the regime, afraid of being associated with the dictatorship of the past, is extra pres- sured to accommodate societal demands by inter alia providing justification for such powers.

Most recently, the prospects of a continued dominance and possible consolidation of executive powers in a post-pandemic setting remains a risk to both constitutionalism but also the protection of human rights. Within the Philippine contexts of the War on Drugs and the pandemic-sanctioned emergency measures, this is of heightened caution, seeing how the lower and often poorer spheres of society, con- ceptualised as almost expendable, been at the receiving end. In this regard the friend-enemy dichotomy is materialised in such asymmetrical terms, that it is not so much as balance between “their rights” vs. “our security,” as it is about “our security” at the expense of “their rights.” Pertaining to the argument, President Duterte is observed as a clear illustration of the sovereign, based on the quickness with which his provisions publicly declared the lower sectors of society as homo sacer or as constituting the excep- tion. Whereas emergency powers were officially adopted with the aim to save lives and protect citizens’ right to life, health amongst others, there are some spheres that are in this way explicitly excluded from such protections, and as such also striped of their rights. This was further exemplified by how Duterte’s statement regarding those disobeying quarantine and lockdown rules was wrapped up in a downright “shoot them dead” (Beltran, 2020). As such, that specific part of the population cannot be said to count with protection to their right to life, a non-derogable right. The main goal behind the national emergency measures approved by Congress at the end of March 2020 was formulated as the protection of life against the external threat posed by the pandemic. However, the practical implementation has gone beyond these provisions, illustrating well the concern expressed by UN High Commissioner for Human Rights Michelle Bachelet: “In some cases, people are dying because of the inappropriate application of measures that have been supposedly put in place to save them” (OHCHR, 2020). In this regard, the state of emergency can in practice be said to be the enactment of a political programme contingent on a dis- criminatory dichotomy between individuals identified as in need of protection and those individuals whose protection can be forfeited. This process places the societal sphere in an area of exception wherein individuals are bereft of political and juridical self-determination.

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4.3. Comparative analysis Some authors have highlighted the arbitrary use of power at the hand of state authorities as a risky exercise seeing how it depicts “order” and “violence” as seemingly interwoven and mutually dependent. Moreover, remaining characteristics of an arbitrary use of state force can result in the reproduction of a fear of the state and its actors among the citizenry (Kruijt & Koonings, 1999). These circumstances can then give rise to a more widespread or general use of emergency powers, what Loveman (1993) comes to call a “constitutional tyranny,” whereby the state’s needs and the preservation of public order is put before individual rights and liberties. This has been found to be especially prominent in fragile democ- racies, in which authoritarian measures might become attractive as means of stabilising the res publica (Aguilar Rivera, 1996). This is something that was widely observed in the Thai context, where the highly volatile political instability recurringly culminated in the declaration of a state of emergency. Moreover, also pertaining to the case of Thailand, the Red-faction-led counter-protests against PM Vej- jajeva illustrates the observation of emergency powers as a potential two-edged sword, seeing how their presupposition of the existence of a norm-exception dichotomy. This opportunity can empower the cit- izenry to make use of the pertaining discourse and challenge less-than-relevant justifications while sim- ultaneously demanding the establishment of a more normal state of affairs. However, this is contingent upon whether the individuals in question are able to claim their political voice and a legal status, attrib- utes which places individuals above the state with the states’ human rights obligations vis-à-vis its citi- zens as catalysing force. In this regard, the notion of social justice constructs the potential for self- determining individuals, which in turn blurs the distinction between the government and the governed. Nonetheless, encountering such a potentially destabilising situation, the sovereign arguably suspends concrete praxis by recurring to a state of emergency, in doing so creating a political climate conducive to the expansion of the own powers (Alford, 2017). This was observed in Thailand in 2014, where the power vacuum, result of a failed state of emergency, enabled the military to establish martial rule, de- spite the nation’s problematic connotations to a military repressive past. Furthermore, such a political climate is enabled by the conceptualisation of the individual as an enemy figure, whose securitisation constructs the exception around the individual, putting a lock on her civil liberties, and unlocks exclu- sionary politics, which in turn justify the suspension of rights. In this regard, the high propensity for arrests and detentions seen in the Thai student-led pro-democracy movement as well as within the framework of the War on Drugs in the Philippines are observed employed to a certain extent as effective tools for silencing politically oppositional individuals, in so doing formally detaching them from polit- ical or social action. Further related to the notion of social action, in the studied contexts an encompass- ing prospect has been observed wherein enactment of relatively severe emergency provisions from the outset hinders a public recognition and acceptance of the proposed measures. This was for instance observed in the declaration of martial law in the Philippines in 2009, a measure which was deemed as

54 unjustifiable harsh. In this regard, the perception of an emergency measure’s severity is contingent of the context’s former experiences with similar provisions. Moreover, unacceptance of emergency measures can be attributed to the so-called effect of “rally around the flag,” a process enabling the acceptance (at least initial) of a temporarily brief response to an identified crisis (Russett, 1990: 34-38). Such an effect was for instance present in the context of Covid-19, which saw the prompt and (at first) unchallenged declaration of states of emergency in both contexts.

Both countries have furthermore been found to mainly declare states of emergency and invoke emer- gency powers according to a preventive paradigm in the face of a perceived potential threat. This can in turn be said to correlate with a reading of Schmitt which does not dismiss the possibility for violence or killings to appear “in the most extreme of cases” in otherwise peaceful times, or times wherein active combat is absent. In this regard, the influence wielded by Shinawatra in Thailand, and the unwritten, consensual view of martial law as unconstitutional in the Philippines demonstrate for instance how the construction of the enemy figure reinforces a self-perception of the sovereign as being the protector of the norm and national security. However, such provisions can undermine also attempted emergency functions as well as the protection guaranteed citizens, who risk being identified as a potential future threat at the government’s whim. In this respect, individuals can be identified as likely enemies whose full identity and affiliation are difficult to determine (Denemark, 2010). Consequently, the individual’s human entity is framed as merely a host for a hidden threat, interpreted along physiological lines as a highly contagious infection (Foucault, 1978). As such, a worthwhile exercise to adopt could be the use of an associative perspective when establishing culpability (Segev, 2020). In this way, potential arrests would be informed by the role held by the individual in question and how it relates to the state and national security, rather than by the potential actions this individual might undertake. In this regard, the well-established principle of proportionality should also be adopted according to an associative per- spective.

From a human rights perspective, the emergency powers targeting ideological and political threats such as the political opposition or brewing insurrection, does by extension also target society and the citi- zenry. At large, the enactment of these powers has resulted to be self-bolstering in appropriating control over state governance structures. For instance, in both Thailand and the Philippines, political criticism and free public assembly perceived as threatening were incidentally framed as rebellious, criminal, or disruptive of the res publica. This in turn resulted in the detention and arrest of individuals attributed to either practice. In many instances, this political process whereby human rights were curtailed became the norm. This was found to be particularly the case in the Philippines within the framework of the War on Drugs but has also been observed in both the Philippines and Thailand in how provisions established due to Covid-19 through frequent extensions came to constitute part of the legal norm. The implications for human rights included an increasingly number of individuals detached from their resistance rights 55 and coerced into a neutralised space of society (Denemark, 2010). This can also be compared to Thai- land’s Internal Security Act and Duterte’s pandemic-related emergency powers, which albeit exercisa- ble without a formal declaration, still perpetuated a juridico-political disequilibrium through their adop- tion. This argument is based on respective provision’s direct influence vis-à-vis legal institutions, hu- man and political rights, and national security. As such, extended emergency powers or frequently de- clared states of emergency continuously create a corralled space conceptualised as a mechanism aimed at controlling the citizenry by placing its individuals in limbo between law and politics, hindering them from legal and political action. Empirical observations illustrate how protracted states of emergency in this way bestow the state with longstanding discretionary power, which if in place for long enough time, might remain in place even after the emergency has been lifted. An example are the powers attributed to the Thai Constitutional Court, which have outlived the 2007 Constitution through which it was con- ceived and have become relatively consolidated in a sovereign fashion. In this respect, constitutional emergency provisions in the observed cases have been found to be empirically crystallised as instru- ments for the normalisation of the exception. In this regard, Schmitt’s underlying assumption of the exception as a state of abnormality can be questioned, especially when being applied to the contexts of Thailand and the Philippines, where protracted internal and political conflicts have in some instances transformed the previously abnormal into the legal norm. Such a shift is exemplified through an emer- gency-adjacent centralisation of power, as was the case with the 2014 martial law invocation in Thailand and the Philippines’ emergency measures enacted in 2016 as part of a strategy for the War of Drugs. In Thailand, martial law can be observed as an exceptional legislature belonging to the norm but which through enactment instals an “ordinary” mechanism for the violation of human rights, seeing how use of exceptional powers in ordinary settings might curtail the human rights associated with the norm. Meanwhile, for the Philippines, the observed de facto institutionalisation of emergency powers blurs the dividing line between the norm and the exception, transforming the legal-political system into a “killing machine” (Agamben, 2005: 88). In this regard, the Thai and Philippine states’ political inability to bring a solution to their respective crises further perpetrates the emergency powers paradox within a framework of governance by legislature that cannot fit a legal frame (Agamben, 2005). Connected to this, the events pertaining to the student-led pro-democracy movement in Thailand throughout 2020 and those pertaining to post-massacre measures in the Philippines in 2009, further illustrate a dichotomic understanding of violence vis-à-vis security, wherein ordinary security prescriptions embedded in the constitution and international treaties might be regarded as comparatively insufficient to the perceived severity of the threat at hand. In this respect, violence across society, and often against the citizenry itself, is enacted through the invoked emergency powers, exemplifying the notion of emergency powers as instances of juridically organised violence exiling spheres of the population conceptualised as outli- ers. Observing such a type of violence in an empirical setting, the governmental responses against the

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2020 pro-democracy movement in Thailand and the allegedly attempted rebellion in the Philippines in 2009, saw the enactment of arrests, detentions, and censorship against individuals engaging in actions deemed defiant – characteristic attributions of the sovereign invoking emergency powers against per- ceived threats. Through an emergency-adjacent adjustment in the allocation of powers, the sovereign is able to monopolise powers which further enables the pseudo-legal establishment of a hierarchy with the sovereign at the top. In this regard, the state of emergency sanctions the formation of an illiberal sphere juxtaposed against constitutional requisites inherent in liberal-democratic governance (Denemark, 2010). Within this framework, the individual’s human rights are politically violated through a hege- monic and monopolistic structure which eradicates the prospects of a political exchange with the gov- ernment. According to an Agambian perspective, this process can be framed as a tentative causal mech- anism underpinning the violation of human rights and civil liberties. As such, citizens are subjected to discretionary law-enforcement practices as means to secure the sovereign position of control.

On a concluding note, an additional point to be considered concerns how a previous history of extensive foreign influence and colonisation to different degrees in the Philippines and in Thailand came to influ- ence the fluctuating status of human rights observed in both countries. In this regard, weak guarantees for human rights protection, especially in times of emergency, can partly be attributed to respective country’s weak adherence to UN human rights instruments6 and to the ASEAN coefficient. The latter regards the 2006 ASEAN Human Rights Declaration, adopted almost twenty years after the establish- ment of the ASEAN Intergovernmental Commission on Human Rights. The declaration is non-binding, and when juxtaposed to other international human rights documents and treaties, has been observed to undermine these. The argument states that if given the choice, ASEAN member states might be tempted to opt for the comparatively weaker regional human rights declaration, as it would portray an image of a responsible state and of national human rights awareness, while placing almost no obligations upon the states (Doyle, 2014). This notion can be further analysed as pertaining to the stature of international human rights treaties, which came to be under a Western historical Weltanschauung, vis-à-vis the level to which they synthesise with a philosophy of political morality, obligations, and rights encapsulated within an Asian politico-philosophical tradition. For instance, the political and legal structures of many countries in Southeast Asia are the result of colonialism and a post-colonial imposition of a modern constitutional model of governance associated to the growth of an international economic order and international law (Ramraj & Thiruvengadam, 2010). Whereas such a process may be labelled in (neo)imperialistic terms, its relevance for the framework of this study lies in maintaining an awareness

6 The Philippines has ratified CERD, ICCPR, ICESCR, CEDAW, CAT, CRC, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, and the CRPD. Thailand on its part has ratified CERD, ICCPR, ICESCR, CEDAW, CAT, CRC, International Convention for the Protection of all Persons from Enforced Disappearance, and the CRPD. 57 that modern legal processes and structures have in many instances amalgamated with traditional forms of supervision or limitation of state powers, in so doing creating additional hybrid mechanisms, of which many are of an informal nature. An example thereof concerns the scrutinising role of the media, present in both Thailand and the Philippines. Besides the media, some other identified mechanisms of the sort are the military, the expansion of the middle-class, and an adherence to a liberal-democratic-styled le- gitimisation of emergency provisions in Thailand, whereas in the Philippines the supervising process has taken the form of a perpetual contestation of martial rule. As such, encapsulated within the frame- work of social reality, the state of emergency and its provisions feature an ambiguous construction vis- à-vis the legislative, further influencing its connection to an epistemology of human rights in a Southeast Asian context.

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5. Conclusion The undertaken study observed the emergency powers paradox, that is, the heightened state propensity to violate human rights while claiming to safeguard those same rights from an identified critical emer- gency. In this regard, the analysis departed from established ideal types of emergency paradigms, the divisions of which became blurred and mutually interlinked throughout the analytical process. This was expected, the study acknowledging the limitations that simplifying generalisations of this sort can result in. Despite this shortcoming, the proposed emergency paradigms were deemed worth the trade-off as they provided a somewhat structured conceptualisation of an otherwise rather abstract phenomenon with a variety of degrees of formality. Of relevance here is the function attributed to ideal types, i.e., to crystallise specific theoretical aspects for their closer observation. In this way, this methodological ap- proach facilitated a comparative analysis as it enabled observations of potential deviations from reality.

The declaration of a state of emergency militarises and polarises society, a process whereby the doctrine of necessity dominates and informs the exclusion or dismissal of identified threats and obstacles in the name of survival. In this regard, whereas the emergency provisions invoked are constitutionally formu- lated, in practice, under the encryption of national security, potential enemies deemed to plausibly pose a threat to the nation in a near future, are identified. As such, the coercive measures and violations of human rights attributed to states of emergency perpetuate an unequal social order wherein the political space beyond mere law supersedes the social dimension. Moreover, states of emergency, by their very nature, create a sense of looming threat and a condition wherein the mere presence of certain individuals identified as enemies presents a risk to the state and the political. As such, exceptional and counter- democratic emergency provisions act as the justifying and legitimising force behind the sovereign praxis of “juridically organised violence” throughout society. Within this framework, the conceptualisation of the threat along the lines of the friend-enemy dichotomy strips individuals of their human rights, as well as of their political and legal status, leading to a maximum deployment of emergency powers domesti- cally and a neglect of international human rights law externally. In this regard, states of emergency rend the citizenry politically mute and incapacitated of participating in political life. This notion can be said to be particularly exacerbated to the extent of becoming institutionalised in instances of protracted or frequently invoked emergency powers. The observed effects thereof in the contexts of Thailand and the Philippines exemplify the notion of states of emergency as more of a governance tool than exceptional.

In order to achieve a worthwhile check on emergency powers, the nexus between law and violence featured in states of emergency needs to be loosened as part of counteractions against the abuse of emergency provisions. The analysis suggests its achievement through the aporia of the perhaps, which in the cases of Thailand and the Philippines have been observed as vesting immediate alternative super- visory powers upon inter alia traditional and social media. The social and the political play an important

59 sustaining role for their successful performance, not only as a reinforcement of the citizenry’s political voice, but also for the maintenance of a normative constitutional structure.

5.1. Future research The main challenge remains the prevention of violence without the need to resort to suspension of hu- man rights guarantees. In this regard, it might be of interest and relevance for future research to delve deeper into non-traditional categorisations of states of emergency as means to go beyond a Western- dominated conceptualisation of the phenomena while simultaneously observing emergency powers in contemporary political settings beyond a 9/11-context, especially regarding a post-pandemic context. In addition to these empirically inclined questions, the very declaration of emergencies and the practices their declaration gives rise to also raises significant theoretical and conceptual issues. For example, the conceptualisation of states of emergency in terms of their relationship to socio-economic statecraft. Moreover, a meaningful broadening of the conceptualisation of states of emergency entails the study of the relationship between armed conflict and states of emergency. Such a perspective would include the dimension of international humanitarian law into the understanding of emergency powers and as such further develop the formulation of a more sophisticated interpretation of the phenomenon.

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6. Bibliography Ackerman, B. 2004. “The Emergency Constitution.” The Yale Law Journal. Vol. 113. No. 5.: 1029- 1091. Agamben, G. 2005. State of Exception. The University of Chicago Press. Agamben, G. 1998. Homo Sacer: Sovereign Power and Bare Life. Stanford University Press. Aguilar Rivera, J.A. 1996. “El manto liberal: emergencias y constituciones.” Política & Gobierno. Vol. 3. No. 2.: 327-358. Albert, R. & Y. Roznai. 2020. Constitutionalism Under Extreme Conditions: Law, Emergency, Excep- tion. Ius Gentium: Comparative Perspectives on Law and Justice. Vol. 82. Springer International Pub- lishing. Alemanno, A. 2011. Governing Disasters. The Challenges of Emergency Risk Regulation. Chelten- ham, UK: Edward Elgar. Alford, R. 2017. Permanent State of Emergency: Unchecked Executive Power & the Demise of the Rule of Law. McGill-Queen’s University Press. Amnesty International. 2020. Thai Authorities’ Covid-19 Response Must Not Lead to Unwarranted Restrictions on Human Rights and Freedom of Expression. Amnesty International Public Statement. 27 March. Available at: https://www.amnesty.org/download/Documents/ASA3920422020ENG- LISH.PDF [Accessed 3 May 2021]. Askew, M. 2010. Legitimacy Crisis in Thailand. Chiang Mai: Silkworm Books. Atienza, M.E.L., A.A. Arugay, J. Encinas-Franco, J.R.Rgo & R.A.L. Panao. 2020. Constitutional Per- formance Assessment in the Time of a Pandemic: The 1987 Constitution and the Philippines’ Covid- 19 Response.” International IDEA Discussion Paper 3/2020. University of the Philippines, Centre for Integrative and Development Studies. Available at: https://www.idea.int/publications/catalogue/con- stitutional-performance-assessment-time-pandemic [Accessed 21 April 2021]. BBC. 2014. “Thailand election disrupted by protests.” BBC News. 2 February. Available at: https://www.bbc.com/news/world-asia-26003995 [Accessed 19 April 2021]. Beaumont, P. 2009.” Philippines province under martial law after massacre.” The Guardian. 5 De- cember. Available at: https://www.theguardian.com/world/2009/dec/06/philippines [Accessed 20 April 2021]. Beltran, M. 2020.” The Philippines’ Pandemic Response: A Tragedy of Errors.” The Diplomat. 12 May. Available at: https://thediplomat.com/2020/05/the-philippines-pandemic-response-a-tragedy-of- errors/ [Accessed 5 May 2021]. Bryman, A. 2012. Social Research Methods. Oxford University Press. Buzan, B., O. Waever, & J.D. Wilde. 1998. Security: a new framework for analysis. Boulder, Colo- rado: Lynne Rienner. Cash, J. 2009. “Negotiating insecurity: Law, Psychoanalytic Social Theory and the Dilemmas of the World Risk Society.” The Australian Feminist Law Journal. Vol. 30. No.1.: 87-107. Chachavolpongpun, P. 2013. Thailand’s Red Networks: From Street Forces to Eminent Civil Society Coalitions. Southeast Asian Studies at the University of Freiburg. Occasional Paper Series. No. 14. Available at: https://www.southeastasianstudies.uni-freiburg.de/documents/occasional-paper/op14.pdf [Accessed 18 April 2021]. 61

Chachavolpongpun, P. 2011. “The Necessity of Enemies in Thailand’s Troubled Politics.” Asian Sur- vey. Vol. 51. No. 6.: 1019-1041. Chachavolpongpun, P. 2010. “’Unity’ as a Discourse in Thailand’s Polarised Politics.” Southeast Asian Affairs. Vol. 2010. No. 1.: 332-342. Chambers, P. & N. Waitoolkiat. 2016. “The Resilience of Monarchised Military in Thailand.” Journal of Contemporary Asia. Vol. 46. No. 3.: 425-444. Chambers, P. 2010. “Thailand on the brink: Resurgent military, eroded democracy.” Asian Survey. Vol. 50. No. 5.: 835-858. Chen, H. & A. Harding. 2018. Constitutional Courts in Asia: A Comparative Perspective. Cambridge: Cambridge University Press. Cole, D. 2003. “Judging the Next Emergency: Judicial Review and Individual Rights in Times of Cri- sis.” Michigan Law Review. Vol. 101. No. 8.: 2565-2595. Cole, D. 2004. “The Priority of Morality: The Emergency Constitution’s Blind Spot” The Yale Law Journal. Vol. 113. No. 8.: 1753-1800. Conde, C.H. 2009. “Martial Law is Rescinded in a Philippine Province.” . 12 De- cember. Available at: https://www.nytimes.com/2009/12/13/world/asia/13filip.html [Accessed 20 April 2021]. Connors, M.K. 2011. “Thailand’s Emergency State: Struggles and transformations.” Southeast Asian Affairs.: 287-305. Constant, B. 1989. Escritos Políticos. Madrid: Centro de Estudios Constitucionales. Christie, K. & D. Roy. 2001. The Politics of Human Rights in East Asia. Pluto Press. Criddle, E.J. 2016. Human Rights in Emergencies. New York: Cambridge University Press. Criddle, E.J. & E. Fox-Decent. 2012. “Human Rights, Emergencies, and the Rule of Law.” Human Rights Quarterly. Vol. 34. No. 1.: 39-87. Cruz Villalón, P. 1984. Estados de excepción y suspensión de garantías. Madrid: Tecnos. Curato, N. 2011. “The Road to Oakwood is Paved with Good Intentions: The Oakwood and the Politics of Recognition.” Philippine Sociological Society. Vol. 59.: 23-48. Davenport, C. & M. Inman. 2012.” The State of State Repression Research Since the 1990s.” Terror- ism and Political Violence. Vol. 24.: 619-634. de Jesus, N. N. 2020. “Proclamation No. 929 & 922 – Public Health Emergency & ECQ throughout Luzon.” Manila Bulletin. 7 May. Available at: https://mb.com.ph/2020/05/07/proclamation-no-929- and-922-public-health-emergency-ecq-throughout-luzon/ [Accessed 20 April 2020]. Dela Cruz, E. & N.J. Morales. 2020. “Philippines suffers first recession in 29 years, braces for grim year on virus woes.” . 6 August. Available at: https://www.reuters.com/article/us-philippines- economy-gdp-idUSKCN25208X [Accessed 20 April 2020]. Delfino, M.A. 2000. “El desarrollo de los estados de excepción en las Constituciones de América Latina.” in García de Enterría Martínez-Carande, E. Constitución y constitucionalismo hoy: Cincuentenario del derecho constitucional comparado de Manuel García Pelayo. Caracas: Fundación Manuel García Pelayo. Denemark, R.A. 2010. The International Studies Encyclopedia. Wiley-Blackwell.

62

Derrida, J. 2001. “A Discussion with Jacques Derrida.” Theory & Event. Vol. 5. No. 1. Despouy, L. 1999. Los derechos humanos y los estados de excepción. Instituto de Investigaciones Jurídicas. Serie Estudios Jurídicos. No. 6. City: Universidad Nacional Autónoma de México. Dicey, A.V. 1982. Introduction to the Study of the Law of the Constitution. London: Macmillan. Doyle, N. 2014. “The ASEAN Human Rights Declaration and the Implications of Recent Southeast Asian Initiatives in Human Rights Institution-Building and Standard-Setting.” The International and Comparatively Law Quarterly. Vol. 63. No, 1.: 67-101. Dressel, B. 2010. “When notions of legitimacy conflict: The case of Thailand.” Politics & Policy. Vol. 38. No. 3.: 445-469. Dyzenhaus, D. 2005. “The State of Emergency in Legal Theory.” in Ramraj, V.V., M. Hor & K. Roach. Global Anti-Terrorism Law and Policy. New York: Cambridge University Press. Fairman, C. 1943. The Law of Martial Rule. Chicago: Callaghan. Farnsworth, W. 2001. “To Do a Great Right, Do a Little Wrong: A User’s Guide to Judicial Lawless- ness.” Minnesota Law Review. Vol. 86. No. 1.: 227-266. Farrelly, N. 2009. “Thailand’s Songran Crisis of 2009.” East Asia Forum. 13 April. Available at: https://www.eastasiaforum.org/2009/04/13/thailands-songkran-crisis-of-2009-2/ [Accessed 19 April 2021]. Ferejohn, J. & P. Pasquino. 2004. “The Law of Exception: A Typology of Emergency Powers.” Inter- national Journal of Constitutional Law. Vol. 2. No. 2.: 210-239. Ferrara, F. 2015. The political development of modern Thailand. Cambridge: Cambridge University Press. Ferrara, F. 2011. Thailand Unhinged: The death of Thai-style democracy. Equinox Publishing. Fitzpatrick, J. 1994. Human Rights in Crisis. The International System for Protecting Rights During States of Emergency. University of Pennsylvania Press. Foucault, M. 1978. “About the Concept of the ‘Dangerous Individual’ in 19th Century Legal Psychia- try.” International Journal of Law and Psychiatry. Vol.1. No. 1.: 1-18. Frankenberg, G. 2014. Political Theology and the Erosion of the Rule of Law: Normalising the State of Exception. Berlin: Edgard Elgar Pub. Freeman, M. 2003. Freedom or Security: The Consequences for Democracies Using Emergency Pow- ers to Fight Terror. Westport: Praeger. Friedrich, C.J. 1950. Constitutional government and democracy: Theory and practice in Europe and America. New York: Blaisdell. Garnett, J.C. 1990.” Emergency Powers in Northern Ireland.” in Leng, S. Coping with Crises: How Governments Deal with Emergencies. Lanham: University Press of America. Glaser, B. & A. Strauss. 1967. The Discovery of Grounded Theory. Strategies for Qualitative Re- search. California: Thousand Oaks. George, A.L. & A. Bennett. 2005. Case Studies & Theory Development in the Social Sciences. Cam- bridge: MIT Press. Gross, O. & F. Ní Aoláin. 2006. Law in Times of Crisis. Emergency Powers in Theory and Practice. Cambridge: Cambridge University Press. 63

Gross, O. 2003. “Chaos and Rules: Should Responses to Violent Crises Always be Constitutional?” Yale Law Journal. Vol. 112. No. 5.: 1011-1134. Harding, A. & P. Leyland. 2012.” The Colour of Thailand’s (Un)Constitutional Reforms: Red, Yel- low, or Orange?” in Linnan, D.K. Legitimacy, Legal Development and Change: Law and Modernisa- tion Reconsidered. Farnham, Surrey: Ashgate. Harding, A. & P. Leyland. 2011. The constitutional system of Thailand: A contextual analysis. Bloomsbury Publishing. Hartman, 1981. “Derogation from Human Rights Treaties in Public Emergencies” Harvard Interna- tional Law Journal. Vol. 22.: 1-16 Harvey, R. 2010. “Thailand PM opens negotiations with Red-Shirts.” BBC News. 28 March. Available at: http://news.bbc.co.uk/2/hi/asia-pacific/8591373.stm [Accessed 19 April 2021]. Harvey, R. 2010b. “Thai red-shirt supporter Gen Khattiya shot.” BBC News. 13 May. Available at: http://news.bbc.co.uk/2/hi/asia-pacific/8680455.stm [Accessed 19 April 2021]. Honig, B. 2009. Emergency Politics: Paradox, Law, Democracy. Princeton: Princeton University Press. Human Rights Watch. 2020. “Thailand: Emergency Decree Pretext for Crackdown.” Human Rights Watch. 15 October. Available at: https://www.hrw.org/news/2020/10/15/thailand-emergency-decree- pretext-crackdown# [Accessed 6 May 2021]. Humphreys, S. 2006. “Legalising Lawlessness: On Giorgio Agamben’s State of Exception.” The Eu- ropean Journal of International Law. Vol. 7. No. 3: 677-687. Huysmans, J. 2008.: “The Jargon of Exception – On Schmitt, Agamben and the Absence of Political Society.” International Political Sociology. Vol.2.: 165-183. Kahan, D.M. 1997. “Ignorance of Law is an Excuse – But Only for the Virtuous.” Michigan Law Re- view. Vol. 96. No. 1.: 127-154. Khaosod English. 2014. “Court Strips Government of Various Emergency Powers.” Khaosod English. 19 February. Available at: https://www.khaosodenglish.com/politics/2014/02/19/1392808934/ [Ac- cessed 19 April 2021]. Kiettikunwong, N. 2019. “The Green Bench: Can an environmental court protect natural resources in Thailand?” Environment, Development, and Sustainability. Vol. 21. No. 1.: 385-404. Klein, N. 2007. La doctrina del shock: El auge del capitalismo del desastre. Barcelona: Paidós. Kongkirati, P. 2016. “Thailand’s Failed 2014 Election: The Anti-Election Movement, Violence, and Democratic Breakdown.” Journal of Contemporary Asia. Vol. 46. No. 3.: 467-485. Kongkirati, P. 2014. “The Rise and Fall of Electoral Violence in Thailand: Changing Rules, Struc- tures, and Power Landscapes, 1997-2011.” Contemporary Southeast Asia. Vol. 36. No. 3.: 386-416. Kruijt, D. & K. Koonings. 1999. Societies of fear: The Legacy of Civil War, Violence & Terror in Latin America. New York: Zed Books Ltd. Landingin, R. 2003. “Mutiny in Philippines fails for lack of support.” The Irish Times. 28 July. Avail- able at: https://www.irishtimes.com/news/mutiny-in-philippines-fails-for-lack-of-support-1.367646 [Accessed 20 April 2021]. Lazar, N.C. 2006. “Must Exceptionalism Prove the Rule? An Angle of Emergency Government in the History of Political Thought.” Politics & Society. Vol. 34. No. 2.: 245-275. 64

Lee, T. 2002. “Malaysia and the Internal Security Act: The Insecurity of Human Rights after Septem- ber 11.” Singapore Journal of Legal Studies. Vol. 2002. No. 1.: 56- 72. Lee, H.P. 1984. Emergency powers. Sydney: Law Book Co. Leyland, P. & A. Harding. 2009. Constitutional Courts: A Comparative Study. Wildy: Simmons & Hill. Locke, J. & I. Shapiro. 2003. Two treatises of government and a letter concerning toleration. New Haven: Yale University Press. Loewenstein, K. 1937. “Militant Democracy and Fundamental Rights.” The American Political Sci- ence Review. Vol. 31. No. 3.: 417-432. Loveman, B. 1993. The Constitution of Tyranny: Regimes of Exception in Spanish America. Univer- sity of Pittsburgh Press. Machiavelli, N. 1996. Discourses on Livy. Chicago: University of Chicago Press. MacKinnon, I. 2008a. “Thailand: State of emergency declared in Bangkok.” The Guardian. 2 Septem- ber. Available at: https://www.theguardian.com/world/2008/sep/03/thailand [Accessed 16 April 2021]. MacKinnon, I. 2008b. “Second Bangkok airport shut by Thai anti-government protesters.” The Guardian. 27 November. Available at: https://www.theguardian.com/world/2008/nov/27/thailand [Accessed 18 April 2021]. Mahy, P. & J.P. Sale. 2015. “Classifying the Legal System of the Philippines: A Preliminary Analysis with Reference to Labour Law.” Philippine Journal of Labour and Industrial Relations. Vol. 32. No. 1-2.: 1-28. McCargo, D. 2005. “Network monarchy and legitimacy crises in Thailand.” The Pacific Review. Vol. 18. No. 4.: 499-519. McCullogh, J. & S. Pickering 2009. “Pre-Crime and Counter-Terrorism: Imagining Future Crime in the ‘War on Terror.’ The British Journal of Criminology. Vol. 49. No. 5.: 628-645. Mead, K.K. 2004. The rise and decline of Thai absolutism. Routledge. Mérieau, E. 2016. “Thailand’s Deep State, Royal Power, and the Constitutional Court.” Journal of Contemporary Asia. Vol. 46. No. 3.: 445-466. Meron, T. 1987. Human rights in internal strife: their international protection. Cambridge: Grotius. Ministry of Foreign Affairs Kingdom of Thailand. 2020. “Press Release on the Amnesty International Public Statement.” Ministry of Foreign Affairs. 10 April. Available: https://www.mfa.go.th/en/con- tent/116525-press-release-on-the-amnesty-international-public-state- ment?page=5d5bd3cb15e39c306002a9b2&menu=5d5bd3cb15e39c306002a9b3 [Accessed 16 May 2021]. Molloy, S. 2020. “Human Rights in Africa in the Context of Covid-19.” I-CONnect. Blog of the Inter- national Journal of Constitutional Law. 1 May. Available at: [Accessed 3 February 2021]. Montesano, M.J., T. Chong, & M. Heng. 2019. After the Coup: the National Council for Peace and Order era and the future of Thailand. Singapore: ISEAS, Yusof Ishak Institute. Murashima, E. 1988. “The Origin of Modern Official State Ideology in Thailand.” Journal of South- east Asian Studies. Vol. 19.: 80-96.

65

Neal, A.W. 2006. “Foucault in Guantánamo: Towards an Archaeology of the Exception.” Security Di- alogue. Vol. 37. No. 1.: 31-46. Nissen, A. 1877. Das Iustitium. Eine Studie aus der römischen Rechtsgeschichte. Leipzig: Gebhardt. Official Gazette of the Republic of the Philippines. 2020. Proclamation No. 922. Declaring a State of Public Health Emergency throughout the Philippines. 8 March. Available at: https://officialga- zette.gov.ph/downloads/2020/02feb/20200308-PROC-922-RRD-1.pdf [Accessed 20 April 2021]. Official Gazette of the Republic of the Philippines. 2016. Proclamation No. 55. Declaring a State of National Emergency on Account of Lawless Violence in Mindanao. 4 September. Available at: https://www.officialgazette.gov.ph/2016/09/04/proclamation-no-55-s-2016/ [Accessed 20 April 2021]. Official Gazette of the Republic of the Philippines. 2009a. Proclamation No. 1946. Declaring a State of Emergency in Central Mindanao. 24 November. Available at: https://www.officialga- zette.gov.ph/2009/11/24/proclamation-no-1946-s-2009/ [Accessed 20 April 2021]. Official Gazette of the Republic of the Philippines. 2009b. Proclamation No. 1946. Proclaiming a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Province of Maguindanao, Except for Certain Areas. 4 December. Available at: https://www.officialga- zette.gov.ph/2009/12/04/proclamation-no-1959-s-2009/ [Accessed 20 April 2021]. Official Gazette of the Republic of the Philippines. 2006. Proclamation No. 1017. Proclamation De- claring a State of National Emergency. 24 February. Available at: https://www.officialga- zette.gov.ph/2006/02/24/proclamation-no-1017-s-2006/ [Accessed 20 April 2021]. Official Gazette of the Republic of the Philippines. 2003. Proclamation No. 427. Declaring a State of Rebellion. 27 July. Available at: https://www.officialgazette.gov.ph/2003/07/27/proclamation-no-427- s-2003/ [Accessed 20 April 2021]. Official Gazette of the Republic of the Philippines. 2001. Proclamation No. 38. Declaring a State of Rebellion in the National Capital Region. 1 May. Available at: https://www.officialga- zette.gov.ph/downloads/2001/05may/20010501-PROC-0038-GMA.pdf [Accessed 15 April 2021]. OHCHR. 2020. “Covid-19: Exceptional measures should not be cover for human rights abuses and violations – Bachelet.” United Nations Human Rights. Office of the High Commissioner. 27 April. Available at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25828 [Ac- cessed 29 March 2021]. OHCHR. Undated. “International Covenant on Civil and Political Rights.” United Nations Human Rights. Office of the High Commissioner. Available at: https://www.ohchr.org/en/professionalinter- est/pages/ccpr.aspx [Accessed 29 March 2021]. Pangalangan, R.C. 2016.” Philippine Constitutional Law: Majoritarian Courts and Elite Politics.” in Chen, A.H.Y. Constitutionalism in Asia in the early twenty-first century. Cambridge: Cambridge Uni- versity Press. Petty, M. 2009. “Thai protesters target Asia summit.” Reuters. 10 April. Available at: https://www.reuters.com/article/us-asean-summit/thai-protesters-target-asia-summit- idUSTRE5390A020090410 [Accessed 19 April 2021]. Philippine Daily Inquirer. 2016. “States of rebellion, emergency under Arroyo administration.” Philip- pine Daily Inquirer. 4 September. Available at: https://newsinfo.inquirer.net/812626/states-of-rebel- lion-emergency-under-arroyo-administration [Accessed 20 April 2021].

66

Pollock, F. 1902. “What is Martial Law?” Law Quarterly Review. Vol. 18.: 152-158. Ratcliffe, R. 2020a. “Thai protest leaders play cat and mouse with police as thousands rally.” The Guardian. 18 October. Available at: https://www.theguardian.com/world/2020/oct/18/thai-protest- leaders-play-cat-and-mouse-with-police-as-thousands-rally [Accessed 15 May 2021]. Ratcliffe, R. 2020b. “UN expert urges Thailand to stop targeting protesters with royal insult law.” The Guardian. 27 December. Available at: https://www.theguardian.com/world/2020/dec/27/un-thailand- protesters-royal-insult-law-lese-majesty [Accessed 20 May 2021]. Ratcliffe, R. 2020c. “Thailand’s Prime Minister lifts emergency measures.” The Guardian. 22 Octo- ber. Available at: https://www.theguardian.com/world/2020/oct/21/thailand-prime-minister-may-lift- emergency-measures [Accessed 20 May 2021]. Radin, M. 1942. “Martial Law and the State of Siege.” California Law Review. Vol. 30. No. 6: 634- 647. Ramraj, V.V. 2010. “The emergency powers paradox.” in Ramraj, V.V. & A.K. Thiruvengadam. Emergency Powers in Asia. Exploring the Limits of Legality. Cambridge University Press. Ramraj, V.V. & A.K. Thiruvengadam. 2010. Emergency Powers in Asia. Exploring the Limits of Le- gality. Cambridge University Press. Reed, J. 2020. “Thailand declares state of emergency and cracks down on demonstrators.” Financial Times. 15 October. Available at: https://www.ft.com/content/26f1f4e4-db9d-41f8-bf3a-0b79aa4e6be9 [Accessed 19 April 2021]. Roe, P. 2008. “Actor, Audience(s), and Emergency Measures: Securitisation and the UK’s Decision To Invade Iraq.” Security Dialogue. Vol. 39. No. 6.: 615-635. Rojanaphruk, P. 2020. “The young protesters taking on the monarchy are changing Thailand forever.” The Guardian. 23 October. Available at: https://www.theguardian.com/commentis- free/2020/oct/23/young-protesters-monarchy-thailand-freedom-of-speech [Accessed 16 May 2021]. Rossiter, C.L. 1948. Constitutional Dictatorship: Crisis Government in Modern Democracies. Prince- ton: Princeton University Press. Rousseau, J.J. 2002. The Social Contract and the First and Second Discourses. New Haven: Yale University Press. Rousseau, J.J. 1993. The Social Contract and Discourses. New York: Everyman. Russett, B. 1990. Controlling the Sword: The Democratic Governance of National Security. Cam- bridge: Harvard University Press. Samutwanit, C. 1982. The Thai young turks. Ashgate Publishing Company. Scheinin, M.” Covid-19 Symposium: To Derogate or Not to Derogate?” OpinioJuris. 6 April. Availa- ble at: https://opiniojuris.org/2020/04/06/covid-19-symposium-to-derogate-or-not-to-derogate/ [Ac- cessed 18 February 2021]. Schmitt, C. 1996. The Concept of the Political. University of Chicago Press. Schmitt, 1985. Political Theology: Four Chapters on the Theory of Sovereignty. Cambridge: MIT Press. Segev, J. 2020. “Detaining Unlawful Enemy Combatants in Israel: A Matter of Misinterpretation?” in Albert, R. & Y. Roznai. Constitutionalism Under Extreme Conditions. Ius Gentium: Comparative Per- spectives on Law and Justice. Vol. 82. Springer International Publishing. 67

Sen, A. 2004. “Elements of a Theory of Human Rights.” Philosophical & Public Affairs. Vol. 32. No. 4.: 315-356. Shaw, E., T. Parritt & K. Whiphatawat. 2010. Thailand’s Internal Security Act: Risking the Rule of Law? International Commission of Jurists. Bangkok. South China Morning Post. 2020. “Philippine Congress approves national emergency declaration.” South China Morning Post. 24 March. Available at: https://www.scmp.com/news/asia/southeast- asia/article/3076790/philippine-congress-approves-national-emergency [Accessed 20 April 2021]. Strangio, S. 2020. “Thailand Imposes ‘Severe’ State of Emergency to Quash Pro-Democracy Pro- tests.” The Diplomat. 15 October. Available at: https://thediplomat.com/2020/10/thailand-imposes- severe-state-of-emergency-to-quash-pro-democracy-protests/ [Accessed 16 April 2021]. Streckfuss, D. 2014. “The End of the Endless Exception? Time Catches Up With Dictatorship in Thai- land.” Society for Cultural Anthropology. 23 September. Available at: https://culanth.org/field- sights/the-end-of-the-endless-exception-time-catches-up-with-dictatorship-in-thailand [Accessed 18 April 2021]. Teitel, R. 1997. “Transnational Jurisprudence: The Role of Law in Political Transformation.” The Yale Legal Journal. Vol. 106. No. 7.: 2009-2080. Temphairojana, P. 2014. “Thai protesters make up for lack of Bangkok pre-election buzz.” Reuters. 31 January. Available at: https://www.reuters.com/article/uk-thailand-protest-election-idUK- BREA0U09W20140131 [Accessed 19 April 2021]. Terwiel, B.J. 2011. Thailand’s Political History: From the 13th century to recent times. Bangkok: River Books. The Economist. 2010. “Politics as Unusual: Thailand’s State of Emergency.” The Economist (Lon- don). Vol. 396. No. 8693.: 46. Available at: https://go-gale-com.ezproxy.its.uu.se/ps/retrieve.do?ta- bID=Newspapers&resultListType=RESULT_LIST&searchResultsType=Sin- gleTab&hitCount=2&searchType=BasicSearchForm¤tPosition=2&do- cId=GALE%7CGP4100903611&docType=Article&sort=Pub+Date+Forward+Chron&contentSeg- ment=ZEHI-MOD1&prodId=ECON&pageNum=1&con- tentSet=GALE%7CGP4100903611&searchId=R1&userGroupName=uppsala&inPS=true [Accessed 19 April 2021]. The Global State of Democracy Initiative Philippines. Undated. Philippines. The Global State of De- mocracy Initiative. Available at: https://www.idea.int/gsod-indices//#/indices/countries-regions-pro- file?rsc=%5B840%5D&covid19=1 [Accessed 19 April 2021]. The Guardian. 2021. “Thailand considers expanding jails as it arrests more political prisoners.” The Guardian. 11 March. Available at: https://www.theguardian.com/world/2021/mar/11/thailand-consid- ers-expanding-jails-as-it-arrests-more-political-prisoners [Accessed 20 May 2021]. The Guardian. 2006. “State of emergency declared in Philippines.” The Guardian. 24 February. Available at: https://www.theguardian.com/world/2006/feb/24/philippines [Accessed 16 April 2021]. The Guardian. 2001. “Estrada held on corruption charges.” The Guardian. 25 April. Available at: https://www.theguardian.com/world/2001/apr/25/2 [Accessed 20 April 2021]. Thompson, M.R. 2015. “Democracy with Asian Characteristics.” The Journal of Asian Studies. Vol. 74. No. 4.: 875-887.

68

Tran, M. 2009. “Thai PM declares state of emergency.” The Guardian. 12 April. Available at: https://www.theguardian.com/world/2009/apr/12/thailand-state-emergency-bangkok [Accessed 19 April 2021]. Tushnet, M. 2005. “Controlling Executive Power in the War on Terrorism.” Harvard Law Review. Vol. 118. No. 8.: 2673-2682. Tushnet, M. 2003. “Defending Korematsu?: Reflections on Civil Liberties in Wartime.” Wisconsin Law Review. Vol. 2003. No. 2: 273-308. United Nations. 2010. International Covenant on Civil and Political Rights. New York, 16 December 1966 – Thailand: Notification under Article 4(3). Reference: C.N.375.2010.TREATIES-13 (Deposi- tary Notification). Available at: https://treaties.un.org/doc/Publication/CN/2010/CN.375.2010-Eng.pdf [Accessed 25 April 2021]. United Nations. 2014a. International Covenant on Civil and Political Rights. New York, 16 December 1966 – Thailand: Notification under Article 4(3). Reference: C.N.49.2014.TREATIES-IV.4 (Deposi- tary Notification). Available at: https://treaties.un.org/doc/Publication/CN/2014/CN.49.2014-Eng.pdf [Accessed 25 April 2021]. United Nations. 2014b. International Covenant on Civil and Political Rights. New York, 16 December 1966 – Thailand: Notification under Article 4(3). Reference: C.N.479.2014.TREATIES-IV.4 (Deposi- tary Notification). Available at: https://treaties.un.org/doc/Publication/CN/2014/CN.479.2014-Eng.pdf [Accessed 25 April 2021]. United Nations. 2020. International Covenant on Civil and Political Rights. New York, 16 December 1966 – Thailand: Notification under Article 4(3). Reference: C.N.194.2020.TREATIES-IV.4 (Deposi- tary Notification). Available at: https://treaties.un.org/doc/Publication/CN/2020/CN.194.2020-Eng.pdf [Accessed 25 April 2021]. Valadés, D. 1974. La dictadura constitucional en América Latina. Mexico City: Universidad Nacional Autónoma de México. Vassileva, R. 2020. “Bulgaria: Covid-19 as an Excuse to Solidify Autocracy?” Verfassungsblog on Matters Constitutional. 10 April. Available at: https://verfassungsblog.de/bulgaria-covid-19-as-an- excuse-to-solidify-autocracy/ [Accessed 18 February 2021]. Villanueva, M.A. 2001. “State of Rebellion.” Philippine Star. 2 May. Available at: https://www.philstar.com/headlines/2001/05/02/90544/state-rebellion [Accessed 15 April 2021]. Williams, M.C. 2003. “Words, Images, Enemies: Securitisation & International Politics.” Interna- tional Studies Quarterly. Vol. 47. No. 4.: 511-531. Williams, B.A.O. & G. Hawthorn. 2008. In the Beginning was the Deed: Realism and Moralism in Political Argument. Princeton: Princeton University Press. Wright, C. 2015. Emergency Politics in the Third Wave of Democracy. A Study of Regimes of Excep- tion in , , and . Lanham Md. Lexington Books. Yano, T. 1972. “Some characteristics of political leadership in Thailand: ’s ‘Revolution- ary Party Edicts.’” The Developing Economies. Vol. 10. No. 3.: 233-249. Yuda, M. 2020. “Thailand PM lifts state of emergency after resignation call.” NIKKEI Asia. 22 Octo- ber. Available at: https://asia.nikkei.com/Politics/Turbulent-Thailand/Thailand-PM-lifts-state-of-emer- gency-after-resignation-call [Accessed 16 April 2021].

69

Zizek, S. 2002. “Are we in a war? Do we have an enemy?” London Review of Books. Vol. 24. No. 10. Available at: https://www.lrb.co.uk/the-paper/v24/n10/slavoj-zizek/are-we-in-a-war-do-we-have-an- enemy [Accessed 8 May 2021]. Zovatto, D. 1990. Los Estados de Excepción y los Derechos Humanos en América Latina. Instituto Interamericano de Derechos Humanos. Caracas: Editorial Jurídica Venezolana. Zuleta, P. 2019. An Obstacle to Justice. Impunity, human rights & the Latin American case. Bache- lor’s thesis. Nordic Institute of Latin American Studies. Stockholm University.

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