Perils of 'national security' in virus era

Perils of 'national security' in virus era

In this April 4 photo, a police officer, assisted by a health volunteer, mans a checkpoint at a city street to screen commuters who may be infected with coronavirus. Apichart Jinakul
In this April 4 photo, a police officer, assisted by a health volunteer, mans a checkpoint at a city street to screen commuters who may be infected with coronavirus. Apichart Jinakul

National security -- coupled with public health -- has been invoked in many countries to justify actions to curb the spread of Covid-19. It has led to a variety of actions, including curfews, lockdown, quarantine and other measures to stem the tide of the novel coronavirus disease. This is, therefore, not only the right time to validate its use, but also to recalibrate its scope and application, in order to ensure and maintain a sense of reasonableness and equilibrium.

At the outset, it is worth noting that the word "security" itself is based upon action or reaction to threats, dangers and or risks. When aligned with the word "national", it becomes not only a concept, but also an instrument of the state, particularly the executive branch, to exercise certain powers -- usually, very broad powers -- to limit rights and freedoms. What types of "threats" come into play? Obviously, there are the "actual threats", such as the current Covid-19 pandemic, and "potential threats", such as the possible re-emergence of Covid-19 in countries which have managed to cap its spread.

However, there is a third element that is challenging due to its insidious nature -- "fictitious threats", alias fake threats. This third component is often used by undemocratic regimes (and sometimes, by less-open democratic regimes) to clampdown on their opponents and dissidents who disagree with their ways.

A recalibration is much-needed to expose this artifice and to make the government more transparent and accountable to the public at large, with the view to ensure compliance with the International Rule of Law, also known as international law principles and universal human rights.

National security isn't a stand-alone concept. Instead, it is one which is coupled with, and at times, countered by, the advocacy for "human security", an approach underlined by the United Nations since the 2005 Global Summit, which led to the World Outcome Document that reformed the UN itself. Interestingly, its anthropocentric orientation of human security emphasises three freedoms -- freedom from fear (usually linked with civil and political rights such as freedom of expression and peaceful assembly), freedom from want (usually linked with economic, social and cultural rights, including access to food and economic opportunities) and freedom to live in dignity (to enjoy the totality of rights and freedoms as an entitlement and not as a matter of discretion exercised or conferred by the state). These are evidenced by the promise by all countries to apply the Sustainable Development Goals 2015-30.

On a more substantive front, there are key considerations inviting reflection. First, the laws and policies giving rise to restrictive practices. States, particularly through the executive branch, have an enormous range of tools in the guise of laws, policies and concomitant practices to impose the claim of national security on the general population. Thailand itself has a well-known Emergency Decree and Internal Security Act which can lead to many limitations, such as arrests, detention, restrictions on expression, travel and assembly. There are many other laws which implicitly integrate the notion of national security, such as the counter-terrorism provision under the Criminal Code, the Public Assembly Act, traffic regulations and highways legislation.

One of the most controversial is the Computer Crimes Act, which is often used to prosecute those who express their opinion on social media when seen as antithetical to the executive norm. The situation is exacerbated by the continuing presence of various military related orders/decrees issued before the most recent elections in Thailand; they await reform, but regrettably they still confer powers on the authorities to arrest and detain, in breach of the International Rule of Law.

The most worrying sign of the times is the presence of the Thai Cybersecurity Act. As noted by Manusya, a civil society organisation, in its study on this law, there are "problematic substantive provisions and failure to define them in relation to three levels of Cyber Threats [non- critical, critical and crisis threats]". The crunch is that in regard to the third type of threat -- "crisis threats" (as alleged/identified by the executive branch), the security authorities can enter, check and impound information and computer systems without a judicial warrant. There are enormous implications for the business sector, since the value of their digital infrastructure is often incalculable and the threat to that liberal enterprise is ominous.

There is a need to recalibrate the scope of national security to avoid Big Brother enjoying Big Data. The choices for adjustment include: suspension of application of this law, reform and or abrogation.

Second, the need for checks and balances. The political culture of Thailand and many other countries has witnessed an erosion of checks and balances between the various pillars of the state and it is the executive branch which has been expanding its power by encroaching upon the terrain of parliament, the judiciary and civil society. One NGO has described this situation in Asia, saying "It is not only that the civil society space is shrinking. In fact, it is being shrunk." Ironically, the era of Covid-19 has eroded those checks and balances even more drastically. It has put more power into the hands of the executive branch. Some of them are complemented by national committees that help to advise and to give daily briefings to calm the nervous public who are all too ready to accept what is in reality a fiat, without much scrutiny. Are there any human rights people and civil society actors in those committees as checks and balances?

There are still some possibilities for a more equitable relationship. Rightly, for example, the massive expenditure initiated by the executive power needs to be vetted by a parliamentary committee. Rightly, courts should not be reticent about questioning the use and abuse of discretion by the authorities, where the latter politically "mask" free speech and other manifestations of democracy under the pretext of national security-cum-public health. Rightly, the policy adopted in relation to Covid-19 needs to be studied longitudinally and transparently. Rightly, civil society should not shirk from being vigilant, precisely because it is the fictitiousness manipulated by undemocratic undercurrents which undermines our right to a secure livelihood and our preferred modus vivendi.

Vitit Muntarbhorn is a Professor Emeritus at Chulalongkorn University. He was formerly UN Special Rapporteur, UN Independent Expert and member of UN Commissions of Inquiry on human rights.

Vitit Muntarbhorn

Professor of law at Chulalongkorn University

Professor Vitit Muntarbhorn teaches at Chulalongkorn University, Bangkok.  He has helped the UN in a variety of  positions and is currently a member of a UN Human Rights Commission of  Inquiry.  This article is derived from his speech at the recent Conference on Asean Traversing 2015:  Challenges of  Development, Democratisation, Human Rights and Peace, organised by Mahidol University, Bangkok.

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