THAILAND: What can be done when a constitution cannot be enforced?

North of Bangkok, the Angthong Provincial Court this morning found a farmer guilty of running an illegal community radio station. Sathien Janthorn was given a suspended jail term of six months and fined 60,000 Thai baht (USD 1500) for having broadcast from a community radio transmitter that was paid for by the Finance Ministry, through a World Bank programme. This is just one of many contradictions in this case. Sathien was trained by the government Public Relations Department, the same agency that took the legal action against him, apparently initiated by his broadcasts alleging provincial government corruption. And he was charged under an outdated law, the Radio Telecommunication Act BE 2498 (1955), which appears to be still in use despite changes to the rights of broadcasters established under the 1997 Constitution of Thailand. Despite all these contradictions, Sathien was found guilty. 

It is worthwhile to recall what the 1997 Constitution says about broadcasting. Under section 40

“Transmission frequencies for radio or television broadcasting and radio telecommunication are national communication resources for public interest. There shall be an independent regulatory body having the duty to distribute the frequencies… and supervise radio or television broadcasting and telecommunication businesses as provided by law. In carrying out the act… regard shall be had to utmost public benefit at national and local levels in education, culture, State security, and other public interests including fair and free competition.”

Witnesses in Sathien’s defence testified that he was broadcasting in accordance with the constitution and therefore what he did was legal. But the court found that as there is as yet no independent regulatory body operating to distribute frequencies and licence radio broadcasters, and as Sathien knew this, he was liable. 
In a statement made in January, the Asian Human Rights Commission (AHRC) pointed to the deficiencies of the 1997 Constitution with reference to the well-known case of human rights lawyer Somchai Neelaphaijit. Despite a court having found that Somchai was abducted by the police, the constitution, with all of its clauses for the protection of human rights and civil liberties, was unable to have any impact on the hearing of the case. Although Thailand is a party to the International Covenant on Civil and Political Rights, the constitution was unable to breathe life into the country’s obligations under the covenant through the court; so too in Sathien’s case. 

The 1997 Constitution speaks of a new order and obliges the state to make it reality. But the problem is that no procedure exists for that new order to be realised. There is at present no practical way for a person in Thailand to make a complaint or defend his or her rights under the constitution directly through the courts. Nor is there apparently any way that constitutional provisions can be invoked directly in a court and a judgment made on the basis of these–even when a 50-year-old law is used to prosecute someone in a manner contrary to both the spirit and letter of the constitution. There is also no way for a citizen to take a complaint on constitutional grounds to a superior court. 

Sathien should in principle have grounds to appeal that the fault for not being registered as a community radio station lies not with him but with the government. The law to enact section 40, the Wavelength Regulator Act, was introduced in 2000. The regulating bodies envisaged under that act should have been set up shortly thereafter. Instead, the government has played various games to deny change and prevent completion of this process. Under any circumstances, the government has an obligation to see that constitutional provisions are enacted and enforced within a reasonable period of time. Eight years later, why is it that Sathien, not someone in power, is being held responsible for this failure? The answer in part relates to the inability of people in Thailand to take cases that hinge on their constitutional rights direct to the courts. 

There is another part of the Constitution of Thailand that deserves recollection. Section 39: “A person shall enjoy the liberty to express his or her opinion, make speeches, write, print, publicise, and make expression by other means.” While the constitution gives wide space for the protection of free speech in accordance with international standards, how can this exist without avenues and vehicles for free speech? Free expression in Thailand has for a long time been limited by an imposing culture of silence. The prospects for change depend very much on local initiatives like those of Sathien Janthorn. Should constitutional rights be defeated or delayed by mere technicalities such as procedures for registration? 

The wrong party was tried in court. The government of Thailand, not Sathien Janthorn, is guilty. Sathien was defending his constitutional rights. The state has breached its constitutional obligations. Sathien deserves congratulations, while the government deserves to be sanctioned for its failure. Above all else, the people of Thailand must ask what can their constitution really do for them, and what can they do for their constitution? Until more effort is made to make the 1997 Constitution a reality, cases such as Sathien’s will continue to expose the contradictions and problems for the rule of law and free speech in Thailand.  

Document Type : Statement
Document ID : AS-021-2006
Countries : Thailand,
Issues : Independence of judges & lawyers, Judicial system, Rule of law,