Thailand: The return of the military & the defiance of common sense

Asian Human Rights Commission, Hong Kong

The 19 September 2006 military coup in Thailand led by General Sonthi Boonyaratglin abruptly ended the aggressive and autocratic caretaker government of Pol. Lt. Col. Thaksin Shinawatra. But the coup is a far greater tragedy for Thailand than the Thaksin administration ever was.

The September 19 military coup has been described by some persons as benign. Their reasoning goes that the former government was bad and intransigent. Whatever way it could be removed was good. Even normally well-informed news media have evoked images of a quiet and non-violent coup that is expected to just “slip in and slip out? in the words of one BBC correspondent.

These arguments are naive and confused.

The Thaksin government was a civilian autocracy. It did not respect human rights, the rule of law or democratic principles. It manipulated the media, intimidated its opponents, and played with legislation and public institutions for its own advantage. It exacerbated violence, from wanton extrajudicial killings of supposed drug dealers across Thailand to the conflict in the south. It enormously expanded the power and influence of the police. It fixed an election and allegedly extorted vast sums of money.

But a military autocracy is worse than a civilian autocracy. Within hours of taking power, the army abrogated the constitution, banned political assemblies, and authorised censorship. The Thaksin government sought to undermine the constitution, harass gatherings of political opponents, and control the media through advertising revenue and criminal defamation. But by its very nature, it did not have the audacity to abandon the country’s supreme law and ban civil rights. By contrast, and by its very nature, the army immediately did so.

The argument in favour of a military coup is akin to the argument used by proponents of torture. Torture, they say, is sometimes a regrettable necessity. Where the lives of many are at stake, the physical integrity of one may be violated. Likewise, a coup is sometimes described as a regrettable necessity. Where a country is at stake, a government’s integrity can be violated.

Both arguments boil down to the same wrong-headed notion: that a coup, like torture, can be started and stopped with convenience. It cannot. Torture, once it is introduced into a system of investigation, mutates and spreads. It affects not only the victim but the persons who use it, their institutions and the perceptions of society about what is permitted and what is not. Likewise, a military that obtains power through a coup infiltrates and distorts all areas of governance, as well as public attitudes and expectations. Once admitted, it is not easily removed. Its presence is felt long after it is physically gone.

There is a saying that runs, “Afraid of the tiger, one invokes a tutelary, but the tutelary turns out to be worse than the tiger.?Today, Thailand has replaced a tiger with a tutelary. Happy that the tiger is gone, the terrible implications of how and by whom it was removed are not yet understood. But there is one certainty: no military coup just “slips in and out? By nature, military rulers leave things behind to ensure that their interests endure. And by nature, those interests are contrary to the rule of law, human rights and genuine democracy. Proof of this can be found today in Pakistan and Burma, and in the leftovers of military dictatorships in virtually every country of South and Southeast Asia.

The question is not whether the coup is benign or malign. The question is, how much damage has it already caused, and how can it be mitigated?

Genuine constitutionalism vs. interim constitutionalism

Writing in 1993, Professor Ted McDorman of the University of Victoria in Canada observed that constitutions in Thailand have been seen as nominal rather than normative. That is, they have served to validate the power of the ruling group, rather than lay down ground rules that everyone must obey. “Most political commentators have accepted that the role of a constitution in Thailand has been to legitimate the authority exercised by the then-dominant political forces,?McDorman said. This is one reason why the country has had a new constitution virtually every time that power has changed hands.

In 1992 the people of Thailand broke from this history when popular resistance to the dictator-turned-prime minister General Suchinda Kraprayoon caused the government’s downfall and the beginning of some years of reforms, culminating with the 1997 Constitution of Thailand.

On 11 October 1997 the people of Thailand realised a popular aspiration towards government based upon a rational set of standards applied to all persons, rather than one set of standards for rulers and another for everyone else.

The 1997 Constitution was unprecedented. It was the first to be written by the people of Thailand for the people of Thailand. The assembly that wrote the draft was itself elected by popular vote, not handpicked by some general. The drafters met and discussed the shape and contents of the constitution with people all over the country. Hundreds of interest groups were established to raise and carry forward discussion on and around the drafting. Social debate and exchange flourished. In 2001 Dr Thanet Aphornsuvan of Thammasat University wrote that

“The new Constitution reflected the crystallization of 67 years of Thai democracy. In this sense, the promulgation of the latest constitution was not simply another amendment to the previous constitutions, but it was a political reform that involved the majority of the people from the very beginning of its drafting. The whole process of constitution writing was also unprecedented in the history of modern Thai politics. Unlike most of the previous constitutions that came into being because those in power needed legitimacy, the Constitution of 1997 was initiated and called for by the citizens who wanted a true and democratic regime transplanted on to Thai soil.”

Among other things, the 1997 Constitution made significant changes to the management of criminal justice in Thailand. For the first time, the rule of law truly became a part of the supreme law. Dr. James Klein of the Asia Foundation in 2003 described how,

“Thailand’s fifteen previous constitutions had been subservient to code and administrative law designed by the bureaucracy to regulate individuals in society by restricting their fundamental rights and liberties… Thai politicians, the military and senior civilian bureaucrats had always reserved for themselves the power to interpret the meaning of law and the intent of the constitution.”

As a result of public dissatisfaction at this state of affairs, Dr. Kittipong Kittayarak, a former director general of the Department of Probation has written how the 1997 Constitution

“Put great emphasis on overhauling the criminal justice system. The timing of the drafting of the Constitution also coincided with public sentiments for reform, triggered by public dissatisfaction of criminal justice as a result of the wide media coverage on the abuse of powers by criminal justice officials, the infringement of human rights, the long and cumbersome criminal process without adequate check[s] and balance[s], etc. The public also learned of conflicts in the judiciary and other judicial organs which at times were spread out and, thereby, deteriorated public faith in the justice system. With such [a] background, the members of the Constitutional Drafting Assembly used the occasion to introduce a major overhaul of Thai criminal justice.”

The 1997 Constitution sought to make itself the basis of law, with government agencies subordinate to it, rather than vice versa. This was nothing short of a revolutionary change, and it was bound to bring conflict and problems. So the Constitutional Court and some independent agencies–notably the Election Commission–became mired in controversy. Why should this be surprising? The development of new institutions, particularly where they challenge established authority, is by its very nature provocative. And before September 19 Thailand’s senior courts were addressing this conflict: a conflict that in essence was over whether society should be founded upon the rule of law or the rule of lords. They had public support and the backing of His Majesty the King. So what has changed since then? And where are they now?

Together with the many complicated institutional changes that followed came psychological changes: among judges, lawyers and the public. The higher courts in 2006 for the first time took a lead role in deciding issues of national importance. Courts at all levels were increasingly willing to invoke constitutional rights directly, and consider arguments on human rights principles. The notion of public interest litigation was becoming known and accepted among legal practitioners. People were gaining confidence in the capacity of the courts to address the many problems facing their society. The judiciary, historically by far the weakest leg of the state in Thailand, was at last beginning to flex some muscle.

When protestors against the Thai-Malaysian gas pipeline project were prosecuted, they were acquitted after asserting their rights to assemble and express their opinions freely under the constitution, as were local administrative officers sued by a company for organising meetings against a proposed phosphate mine. Officials of the Anti-Money Laundering Office were found guilty of breaching the constitutional right to privacy of five social activists whose bank accounts and other personal financial details they had illegally investigated. A lawyer sued the public prosecutor for denying him a job because of a physical disability; the court decided that he had suffered discrimination in breach of the constitution.

There were also many innovations. Radio and television broadcasting were identified as national resources to be used in the public interest (section 40): the ground upon which media rights campaigner Supinya Klangnarong successfully stood in court against the huge resources of the former prime minister’s telecommunications empire. Government departments had to inform people of any project that may affect their local environment or quality of life before giving it approval (section 59): the basis for a 2004 judgment against the industry minister and overturning of a mining concession in Khon Kaen that had not first been subject to public debate.

New innovations encouraged new thinking and behaving. Jinthana Kaewkhao, the organiser of a protest against a power plant concession in Prachuab Kiri Khan, won her case after the court defended not only her rights to free assembly and speech but also her right to participate in the management and preservation of natural resources under section 46 of the new constitution. The court went on to observe that this and other new provisions in the law were specifically intended to develop a democratic administration that obliged greater involvement by ordinary persons in public and political life than had earlier charters.

The 1997 Constitution marked a great advance in the thinking of people in Thailand on constitutional issues and the management of their society. It enriched the behaviour of millions. It also constituted a great advance in the notion of consensus. Whereas “consensus?had earlier been understood in terms of patronage–what the elite decided on behalf of everyone else–it was now understood as mature agreement among the general public. Ordinary people throughout the country soon demonstrated a better grasp of the true meaning of consensus than had the traditional authorities.

The 1997 Constitution was also of importance to many far beyond Thailand. It set an example to a region plagued by authoritarianism and the un-rule of law. As Professor Andrew Harding from the University of London has written, “Thai public law reform should be regarded as being of great significance in the context of the development of the new constitutionalism in Asia and the developing world generally.?lt;/P>

The 1997 Constitution was flawed, and it was attacked. Thailand was not transformed overnight, and in fact it experienced many setbacks in the five years of government by Thaksin Shinawatra. But his government’s concerted assaults on constitutional institutions and principles can in no way be compared to what was done by the Thai military in a matter of hours on September 19.

Genuine constitutionalism means ground rules that everybody must obey. Genuine constitutionalism means that even army generals answer to the law. It means that ultimately the army is subordinate to other parts of government. It was this that the military could not stomach.

Good constitutions do not die simply because bad governments abuse them. The Constitution of India was not destroyed by Indira Gandhi’s dictatorial emergency rule in the mid 1970s; it was used by the people to oppose and defeat her. The Constitution of Nepal did not die despite the efforts of King Gyanendra to reimpose absolute monarchy; again people fought back and restored their democracy. Nor is the Constitution of the United States of America dead, despite the immense abuse of powers by the Bush administration. So it is also for Thailand. The 1997 Constitution was not killed by the Thaksin government, as some people have said; nor can the army get rid of it; however, it may try.

The interim constitution introduced by the regime–a characteristic of military takeovers in Thailand–is an attempt at pushing the country back towards nominal constitutionalism. It secures the power of the coup group while trying to give the opposite impression. As informed observers have already noted since it was announced on October 1, the charter gives the remodelled junta–which with it changed its name from “Council for Democratic Reform?to “Council for National Security?-authority of appointment and decision making over the heads of any new government. Apart from appointing the prime minister, and chairperson and deputy chairperson of the temporary parliamentary assembly, under it the junta appoints a 2000-member body which will select 200 persons from among its ranks, among whom the generals again select 100, who are responsible for setting up a 35-person constitution drafting group, among whom 25 will be drawn from the 100 and ten will be handpicked by, yet again, the junta. Questions over the criteria and procedure for selection of the 2000, 200, 100, 35, 25, ten or whatever numbers of persons for whatever posts remain wholly unanswered, and largely unasked.

All this pointless whittling down of persons in order to write a new permanent constitution is apparently intended to distract attention from the fact that it is the junta deciding who does what. It is also apparent that suggestions from law experts to make changes to the document while it was still in draft, which reportedly had as its main author the same person as the 1991 interim constitution, were ignored. It is not surprising that academics and other legal professionals have expressed grave concerns. Of section 34, which allows the junta to call the council of government ministers for a meeting in which to air its views any time it pleases, former senator Thongbai Thongpao wrote in his Sunday Bangkok Post column that it “is not very clever?as it “spoils the pledge of non-interference in the civilian administration? A cartoon on the independent news website Prachatai put the situation more simply: the constitution drafting assembly is sealed off by a barbed wire fence; two ordinary citizens are left to cling to the fence and shout from the outside.

The interim constitution, like others of its type, also gives all pronouncements by the military regime the force of law, and grants them immunity from prosecution for any coup-related actions. By mid-October there were 36 such announcements and 28 such orders listed on the website of the Council for National Security, the renamed coup group. Apart from scrapping the former government, the 1997 Constitution and Constitutional Court, they have imposed martial law, repealed earlier laws, amended the Royal Thai Police Act 2004, restricted free speech and movement, banned political gatherings, and set up new bodies.

 source: PRACHATAI

Normally functioning non-independent courts & the antithesis of common sense

A few years ago, some senior United Nations staff in Cambodia met with a government minister to discuss the state of the country’s courts. They expressed concern about their lack of independence, and asked what intentions the government had to address this problem. “Don’t worry,?the minister told them simply, “I will make them independent.?lt;/P>

Apparently suffering similar confusion, the interim prime minister, General Chulanont Surayud, has said that his government “is committed to restoring the rule of law?through reforms to administration of justice, the police and anti-corruption agencies. Similarly, Thai diplomats have insisted that since the coup “the courts… function as normal, with the exception of the Constitutional Court? The Constitutional Court has of course been suspended in the absence of the 1997 Constitution. But meanwhile section 18 of the new Constitution of Thailand (Interim) 2006, which was signed into law by the head of the military junta, holds that: “Judges are independent in the trial and adjudication of cases in the name of the King and in the interest of justice in accordance with the law and this Constitution.?Section 35 goes on to order the appointment of a new tribunal in place of the Constitutional Court, comprising of judges from the two remaining senior courts.

These provisions in fact do nothing to ensure the independent functioning of courts in Thailand. The independence of judges cannot simply be declared. It is by the effective functioning of institutions and maintenance of safeguards that judges obtain true independence. The declaration in this so-called constitution is also itself directly contradicted by the order to replace a superior court with a tribunal, and stipulation of its membership, on the signature of a military officer who obtained power by force.

Above all else, the independence of judges is ensured by security of tenure. This means that judges cannot be removed and appointed on the whims of the executive or any other part of government. It means that courts cannot be opened and closed on the prerogative of any one person or agency outside of the judiciary. It means that judges, once appointed, are not easily or quickly removed.

Innumerable commentaries and precedents established around the world recognise security of tenure as vital to the integrity of the courts and maintenance of the rule of law. In the Federalist Papers, three framers of the United States constitution note that “nothing will contribute so much as this to that independent spirit in the judges? It follows that the 1985 UN Basic Principles on the Independence of the Judiciary have declared: “Judges, whether appointed or elected, shall have guaranteed tenure.?lt;/P>

The 1997 Constitution of Thailand, while by no means perfect, laid down clear guidelines with checks and balances designed to protect judges?independence, through procedures for appointment and maintenance of tenure. It recognised the principle of independence through serious efforts to see it obtained via institutional arrangements. The interim constitution has no such contents. Nor does the junta have any genuine interest in such matters. Its appointing of a new constitutional tribunal instead defies the very notion of judicial independence. Its orders to various government agencies to go after members of the former government reveal that its interests are limited to the exercise of “justice?as justification for its own illegal acts, rather than to uphold any notions of the rule of law.

Another remark by the interim prime minister seemed to have an unintended meaning. He said that on the one hand, “I am not a politician and I am not bound by special interests.?On the other, he added that, “I have the authority and the power that comes with being an appointed prime minister to act quickly and decisively.?General Surayud has made a virtue out of a vice: the fact that he is unencumbered by any political parties and an elected parliament, he says, is a good thing.

Inseparable from the rule of law is the notion of parliamentary sovereignty. This means that an independent parliament alone has the power to pass acts, free from interference, with effect in law. Those acts may then fall within the exclusive purview of the courts. In this way the judiciary too is strengthened, and its role reaffirmed as the arbiter of the law.

The prime minister’s assertion that he is free to do what he needs to do to uphold the rule of law is a non sequitur. Only a head of government bound by the institutions of the rule of law, among them a functioning parliament and courts, can uphold the rule of law. His very position, and his assertion of his authority to act upon it, is itself a violation of the rule of law.

In the absence of a sovereign parliament, who is making the law in Thailand? Certainly no one answerable to its people: an unelected assembly of military and police officials, bureaucrats and academics is acting on their behalf. No evidence of the rule of law there, either.

A military coup necessarily displaces the foundations upon which the rule of law operates. Where an army unilaterally takes power by force and abrogates the national constitution, it is acting illegally to undermine everything upon which the courts stand. In an interview with The Times newspaper, a senior spokesman for the junta has admitted as much. “[The coup] is against the law… But sometimes, to break the deadlock, someone has to do something,?Major General Thawip Netniyom is reported as having said.

That “sometimes someone has to do something?is a neat phrase, because it can be used to justify anything. When the “someone?is an army clique and the “something?is a coup, a range of generic justifications must follow: the administration was corrupt; the nation was at risk; the people lacked unity. Hence the purported solutions: remove the administration; rescue the nation; re-impose unity.

Certainly, legal systems are complicated, imperfect and time-consuming. That is because the management of a modern state, with many competing interests and demands, is complicated, imperfect and time-consuming. To bypass all of this because “sometimes someone has to do something?is not to solve any problems. It is to throw justice into the rubbish bin. And with it go the principles upon which human rights are protected, international laws written and courts established. This is not stability; it is not rule of law: it is its antithesis. It is dictatorship.

The Nation newspaper of October 8 reported Professor Worachet Pakeerut of Thammasat University as saying that coups would continue in Thailand for so long as the courts there recognise the amnesties that perpetrators pass for themselves. Worachet had said that there “was a discrepancy in the Thai judicial system that recognised law written by people in power even though the law was against morality and people’s common sense?

This “discrepancy?is the crux of Thailand’s problems. For as long as its higher judiciary legitimises illegal takeovers of power, there will be illegal takeovers. For as long as the orders of generals are written into law through new constitutions, there will be fictional constitutionalism.

How can an unconstitutional act be made constitutional simply by saying that it is so? How can an illegal act be made legal by declaring it thus? This is not legal pragmatism, as suggested by some; it is patent absurdity. It is the opposite of common sense; it is nonsense. It is also a blatant breach of international law and obligations to which the new government has promised to adhere: just one among many contradictions that have emerged since the coup.

The highest form of contempt of court is the extralegal removal of a judiciary and legislature, as happened in Thailand on September 19. Where superior courts meekly accept such an action as a done deal, they lose the public confidence needed to address all issues of national concern.

There is a small precedent that could be used, if the senior judiciary in Thailand would have the stomach to try. In March 1993, after the 1991 coup group had already been removed from power by public protest, the Supreme Court of Thailand found that a committee set up to investigate the former government was unconstitutional, and in so doing it overruled order 26 of the coup group as illegal. The time has come to build upon that example, and overrule some more. The most important job for the superior courts now is not to rule on the former government; it is to rule on the present one.

This article is adapted from a dossier released by the Asian Human Rights Commission to coincide with the one-month anniversary of the September 19 military coup in Thailand. The full dossier is available online at: http://thailand.ahrchk.net/docs/AHRC_Thailand_Coup_2006.pdf