Human rights judgments under the 1997 Constitution of Thailand

Lawyers Council of Thailand & Asian Legal Resource Centre, Hong Kong

Mine threatens environment and heritage
Black Case No. 218/2545, Khon Kaen Administrative Court

Somphong Chinsaeng and 392 other residents of Dongmafai, in Suwankhuha District, Nong Bua Lamphu Province, filed a case against the Minister of Industry and Dusit Triwatsuwan, the holder of a ten-year mining concession, alleging that the concession had been granted illegally. They had petitioned the authorities against mining in the area since 1999, because the area of the concession is an important watershed that also contains prehistoric paintings. But the petition was not heard before the authorities granted the concession to a private company. The litigants then petitioned the National Human Rights Commission of Thailand, which in 2001 investigated and recommended that government agencies halt the concession; however, they did not comply. The litigants used the findings of the commission as evidence in their plaint.

Judge Warawuth Siriyuthwattana of the Khon Kaen Administrative Court found that although the minister had authority to grant the concession, it had to be done in accordance with section 59 of the 1997 Constitution:

A person shall have the right to receive information, explanation and reason from a State agency, State enterprise or local government organisation before permission is given for the operation of any project or activity which may affect the quality of the environment, health and sanitary conditions, the quality of life or any other material interest concerning him or her or a local community and shall have the right to express his or her opinions on such matters.

In this case, the concession was granted without consideration of its effects on the environment and community. The court observed that even though the prehistoric paintings are remote and inconvenient to serve as a tourist site, their true value

cannot be measured only in terms of economic revenue; national artistic and cultural heritage is important for the study of nationality, society and ethnicity, and is of academic interest. Thus the concession was revoked.

Protest at approval to build power plant

Black Case No. 1480/2545, Red Case No. 3283/2546, Prachuab Khiri Khan Provincial Court; Court of Appeal

The public prosecutor brought charges of trespass against Jinthana Kaewkhao for organising the Ban Krut villagers to invade the 13 January 2001 celebratory banquet organised by the Union Power Development Company, which had successfully obtained a concession to build a 1400-megawatt power plant at nearby Hin Krut. The villagers pelted eggs and excrement at the 2000-head party, causing it to be abandoned. In response, that night shots were fired into Jinthana’s house.

Judges Panjaphon Sanesangkhom and Siriphon Nannaruemit in the Court of First Instance in Prachuab Khiri Khan Province considered that this case related to a conflict between villagers and local influential persons (i.e. business and mafia figures), where a villager was the accused. They dismissed the case on grounds of freedom of expression under section 39(1) of the 1997 Constitution; and freedom of assembly under its section 44(1) and section 46:

Persons so assembling as to be a traditional community shall have the right to conserve or restore their customs, local knowledge, arts or good culture of their community and of the nation and participate in the management, maintenance, preservation and exploitation of natural resources and the environment in a balanced fashion and persistently as provided by law.

The court noted that the intention of these provisions was to develop a more democratic administration that would encourage greater public participation than under previous constitutions. Therefore, the law should not be used to harass persons legitimately exercising these rights.

However, in the Court of Appeal, Judges Chachawan Bunnag, Kiatisak Kiantidamrong and Prayun na Ranong reversed the lower court verdict and convicted the accused without taking constitutional rights into consideration and without admitting evidence that the defendant was leading a group of villagers in a battle against influential persons who had the means to intimidate witnesses. The case was also referred for further investigation.

The police closed the investigation into the shooting at Jinthana’s house after claiming that they lacked evidence, despite having recovered a bullet casing from nearby.

Gas pipeline protest

Black Case No. 195/2546, Red Case No. 2321/2547,

Songhkla Provincial Court

On 20 December 2002 Ratchada Watanasak and 19 other defendants together with their accomplices travelled by pick-up trucks from Chana to Had Yai in Songhkla Province, in order to interrupt a mobile cabinet meeting organised in the south on the following two days. The group was opposed to the construction of a gas pipeline across the Malaysian border, and a related plant.

The police responsible for the security of the mobile cabinet meeting had been informed that on the day approximately a thousand people would assemble peacefully, travel to Had Yai to present a petition to the prime minister asking for a review of the project, and return home on 21 December 2002. The police officers agreed that the assembly could take place and were ready to make the necessary arrangements. The group gathered together and proceeded in the manner that they had informed the police.

On the way police officers manning checkpoints stopped and inspected the vehicles. Negotiations between the police and protestors allowed for a way to be opened for the convoy to travel to Had Yai as had been agreed. But on reaching Juti-anuson Road at the foot of Jutibunsung Uthit Bridge, en route to the JB Hotel, the protestors found the way blocked by many police officers manning metal barriers. There they refused to be subjected to more searches by the police, having already had their vehicles checked along the way, and refused to turn off from the agreed route and go to another a site that the government agencies had designated for the rally.

The protest group stopped at the bridge and for about one hour waited for the results of negotiations with government agencies. The court later observed that the protestors seemed to believe at the time that the negotiations would be successful. During this time speakers took turns to attack the project, and protestors shouted in response, but the court noted that none of this was unusual for a protest rally or in any way illegal. Nonetheless, the police officers subsequently moved together to force back the protestors until they dispersed. A melee ensued and damage was caused to government property. The accused were then charged with damaging public property, carrying arms without permission, conspiring with more than ten persons to create a disturbance, failing to disperse when ordered and assaulting government officials.

The lawyers for the accused defended the case with reference to the constitutional rights of assembly, protection of natural resources and participation in decision-making in projects affecting local residents.

In their judgment of 30 December 2004, Judges Phongsathon Hemathanon and Tophong Phongseri considered the reason for the protestors to have gathered. The Thai-Malaysian natural gas pipeline and gas separation plant project was a large energy project that would likely affect the quality of the environment, health and living conditions of the local people. The 1997 Constitution stipulated that people, communities and local administrative organizations must receive information, express their opinions and participate in planning, appraisals and public hearings processes in accordance with the law (section 59). Any person had the right to express his or her opinion on the project, and to rally against it in accordance with the law. In keeping with this provision, the government had organised two public hearings on the project. However, persons opposed to the plan had gathered to demonstrate until violence had twice erupted. It had by then become clear that the government would go ahead with the project no matter what.

The court found that the protestors had gathered together and proceeded to Had Yai lawfully in accordance with their constitutional rights. They had not intended to commit offences. However, despite agreeing to accommodate the protestors, the concerned authorities had not been able to agree on which site the protestors could use to stage their rally in Had Yai, despite having had sufficient notification. The relevant government agencies had failed to coordinate and were not fully prepared. Traffic jams resulted from the police officers blocking the Asia Highway and Jutibunsung Uthit Bridge. The authorities did not have justification for changing the route or searching the protestors.

The court upheld the defendants’ constitutional right to assembly, and held that to the extent that there was damage to property and violence against government officials, it was not premeditated but occurred in response to the authorities’ actions. None of the vehicles, electrical equipment, loudspeaker equipment or other objects brought by the protestors was brought with the intention of committing illegal actions, and none of the objects were themselves illegal.

Banchong Nasae, one of the defendants, said afterwards that the most important factor in winning the case had been that “we did only what we have the right to do according to the constitution”. The victory was a landmark judgment in support of constitutional rights, Sangchai Ratanaseriwong, one of the lawyers for the group, said.

The protestors later claimed compensation from the police and provincial authorities for injuries sustained and damage to property.

Local councils refuse mining concession
Red Case No. 665/2546, Central Administrative Court

Simongkhon Agricultural Cooperative Ltd brought a case against the Saiyok District Officer, Simongkhon Tambon [Sub-district] Administrative Organisation (TAO) and four others on the complaint that the district administration had failed to do anything when the TAO had apparently organised local villagers in Kanchanaburi, west of Bangkok, to protest against the cooperative in order to be able to refuse it a phosphate mining concession. The litigant appealed to the court to order the district officer to set aside the opinion of the TAO.

The court found that the TAO had refused the concession for environmental reasons; local residents also opposed the mine. The actions of the citizens and local administrators had been in accordance with the 1997 Constitution; whether or not the state had a policy to support cooperatives was in that respect irrelevant. The members of the TAO and local village head also had the same rights as others under the constitution to express their opinions freely in accordance with section 39(1) so long as they did not violate the law or incite others to do so. Local residents had assembled peacefully and without arms, as was their right under section 44. Therefore there were no grounds upon which the district officer might investigate or take disciplinary action against the TAO to set aside its decision, and the case was dismissed.

Disabled lawyer applies to serve as public prosecutor

Red Case No. 142/2547, Supreme Administrative Court

Simit Munmuun complained that the Public Prosecution Commission had acted unlawfully in rejecting his application to do the selection exam to become a public prosecutor in February 2000, citing the fact that he is physically disabled and thus his appearance would be unsuitable for the work of a public prosecutor. The litigant claimed that this was a violation of section 30(3) of the 1997 Constitution: “Unjust discrimination against a person on the grounds of difference in… physical or health condition… shall not be permitted.”

In a judgment of 17 June 2003 Judge Siriwan Julpo dismissed Simit’s plaint in the Administrative Court, on grounds that the Public Prosecution Commission had the right to require that applicants undergo a medical checkup, and that the Constitutional Court had endorsed its regulations. The judge ruled that the medical requirement of the commission was applied to all applicants without discrimination and that anyone who failed it was denied the right to proceed with his or her application.

However, on appeal the Supreme Administrative Court in February 2005 decided in Simit’s favour. The court noted that he had been able to work as a lawyer for five years without obstacle, and that the work of a public prosecutor was no different.

It cited testimonies from a provincial judge in Kamphaeng Phet and the provincial lawyers’ council in support of his claims. The court upheld the appeal both under section 30(3) of the constitution and also found it to be an illegal discretionary act under article 33(11) of the Government Service Regulations (Public Prosecution Section) Act 1978 (BE 2521). It ruled that the Public Prosecution Commission was obliged to spell out in detail under its regulations what physical handicaps would be deemed to hinder the capacity of an applicant to do the job of a prosecutor.

In reaching the decision, the court effectively overturned the earlier decision of the Constitutional Court on the applications of two persons who had suffered from polio for the post of judge. That court had held that the Judicial Commission had not violated the same section of the constitution by disbarring Sirimit Boonmul and Boonjuti Klubprasert (Case No. 16/2545), on the grounds that a judge walking with a limp would not inspire the required public respect. The decision had attracted considerable public criticism.

Criminal defamation for critiquing prime minister’s business interests

Black Case No. 3091/2546, Red Case No. Aor 685/2549, Criminal Court (Bangkok)

The Shin Corporation sued Supinya Klangnarong and four others for criminal defamation over an article published in the Thai Post newspaper on 16 July 2003 quoting the first defendant as saying that its profits had increased three to four times since its founder, Pol. Lt. Col. Thaksin Shinawatra, had become prime minister. The other defendants were the editors and publishers of the Thai Post.

In the article, Supinya explicitly linked the increase in profits to the political power of Pol. Lt. Col. Thaksin and his Thai Rak Thai party being used to support Shin Corporation’s mobile phone, satellite and television interests, despite the fact that these were deemed to be resources in the public interest (as defined under section 40 of the 1997 Constitution). In the interview, she gave specific warnings about the integration of business and political interests under the then-government, and suggested that Shin Corporation was looking to monopolise high-speed Internet services in Thailand. She said that her advocacy group, the Campaign for Popular Media Reform, had released a report on these and other conflicts of interest.

The corporation sued the five defendants on the grounds that the allegations Screen Shot 2015-12-10 at 11.23.13 AMwere false and had damaged its reputation, and sought that a judgment convicting them be published in all major daily Thai language newspapers for a month at the expense of the accused.

In reaching their decision of 15 March 2006, Judges Nawachart Yamasmith and Mom Luang Chalermchai Kasemsant found that although Pol. Lt. Col. Thaksin was no longer legally a part of the Shin Corporation, as he had been its founder and his relatives had remained on its board of directors, there was clearly a connection between him and the company. Furthermore, the company was engaged in public activities. The first defendant had studied these in detail and commented in good faith and in the public interest, and the newspaper had acted likewise acted in good faith in publishing her remarks. Thus the case was dismissed. A civil case was also dismissed in May 2006.

Villagers’ nationality revoked

Red Case No. Oo 117/2548, Supreme Administrative Court

Phongsi Inlu and 865 others brought a case against the Department of Local Administration Department, Chiang Mai Provincial Administration and Mae Ai District Officer on grounds that the concerned agencies and official had illegally revoked their nationality. They had all been born in the hilly areas of northern Thailand but fire in the district office destroyed the district house registration list for their village during 1976. They had applied to the district and received approval to have their names recorded on the list, along with other family members, totalling 1243 persons. But subsequently a new district officer on 5 February 2002 revoked the approval and ordered that they return their identity cards and registration documents to the Mae Ai Registration Office within 30 days, in accordance with the orders of the Local Administration Department and Chiang Mai Provincial Administration. Instead they were issued with temporary displaced persons identity cards. Thereafter they lost entitlements to insurance, and several villagers in state employment also were sacked from their jobs.

In April 2002 the litigants petitioned the court that they had not been given any opportunity to contest the order, explain or present witnesses or evidence and that the order amounted to unlawful use of discretionary powers.

The Chiang Mai Administrative Court in April 2004 found the Mae Ai District Officer to have acted unlawfully with reference to the cases of 840 of the litigants, and instructed that the order be revoked in their cases.

Screen Shot 2015-12-10 at 11.23.26 AMOn appeal by the provincial and district administrations, Chief Justice Pratheep Woraniti of the Supreme Administrative Court found on 8 September 2005 that the action of the Mae Ai District Officer in revoking the house registrations had the effect of permanently changing the status of the rights and duties of these individuals. It observed that the Mae Ai District Officer did not inform all the persons affected by the announcement that their Thai nationality would be revoked and they would be accorded only a secondary administrative status, and they did not have the opportunity to contest the order or provide any witnesses or evidence to assert their rights (c.f. sections 61 & 62 of the 1997 Constitution). The officer did not follow the criteria and procedures that are essential for the issuance of administrative orders, and therefore the order was issued illegally and that all 1243 persons affected must have their nationality restored.

Financial records of five activists investigated Red Case No. 216/2548, Central Administrative Court

Chaiphan Praphasawat and four others (Phakphum Withansirawat, Baramee Chaiyarat, Nanthachote Chaiyarat and Prayong Doklamyai) brought a case against the Anti-Money Laundering Office (AMLO) and its secretary-general, and the director of the Information Monitoring and Evaluation Centre on the ground that they had violated their authority by investigating the five in October 2001 under the Prevention and Suppression of Money-Laundering Act 1999 (BE 2542). The authorities had ordered financial institutions to provide information related to the financial transactions and assets of the five—among about 20 persons in total, including journalists, members of non- government organisations and human rights defenders—all of who were activists or advisors of the Assembly of the Poor, a rural action group that had been organising demonstrations and other activities in protest at the government. According to the authorities, the investigation had followed an anonymous tip-off on October 3. Some news of the investigation was published in the press.

On 18 February 2005 the majority opinion of the court found that the respondents had used authority without reasonable cause and wrongfully used their discretionary powers. The respondents knew that it was unlawful to collect information on the private bank accounts and transactions of five ordinary citizens, and a violation of the right to privacy and section 420 of the Civil and Commercial Code. However, as this was done confidentially in the course of official duties and as the information was destroyed after the secretary-general cancelled the investigation on 1 July 2002, the damage to the litigants was mitigated and therefore it was not appropriate for them to receive compensation.

Judge Chachiwat Sikaew differed from the majority on the question of compensation for the litigants. He concluded that the officials’ knowledge of the deposit accounts, loans and transactions of the five litigants was damage in itself, and it was not necessary to prove that they had incurred a specific loss. The Prevention and Suppression of Money-Laundering Act does not grant government officials unlimited authority; the respondents were obliged to act in accordance with section 26 of the 1997 Constitution: “In exercising powers of all State authorities, regard shall be had to human dignity, rights and liberties in accordance with the provisions of this Constitution.” However, the respondents had clearly violated the right of privacy under section 34(1) and had not been absolved of the damage caused by their action in any way when the five litigants claimed damages of 50,000 Thai Baht (USD 1250) per person, which was not a large sum in view of the violation.

The judgment followed a similar decision of 24 June 2002 when the Central Administrative Court had ruled that AMLO had illegally investigated four journalists who had been critical of the then-government of Pol. Lt. Col. Thaksin Shinawatra. On that occasion, just prior to the court giving its verdict AMLO called off its investigation and lodged a petition for the case to be dismissed on the basis that since the inquiry had been closed there was no need for the ruling. However, Judge Wisanu Waranyu proceeded to give his judgment and found that AMLO had violated the rights of the four by investigating them on the basis of allegations contained in an anonymous leaflet. “Anonymous leaflets must be treated carefully with the fairest of minds because they could be… produced to justify the abuse of state power. This would be a danger to the rights and liberties of the people,” Judge Wisanu ruled. He too stressed that the powers granted to the agency did not extend to launching blanket inquiries against anybody.

Villagers assault power plant employees

Red Case No. 2383/2548, Criminal Court (Bangkok)

Charoen Wat-aksorn and four others were accused of assaulting and confining a group of persons who on 13 October 2001 had come to do an environmental impact assessment of an area where the Gulf Power Generation Company had obtained a concession to build a 734-megawatt power plant in Bo Nok, Prachuap Kiri Khan. The five accused were all leaders of a local conservation group that had been fighting against the plant’s construction for a number of years. Charoen was subsequently shot dead on 21 June 2004 after returning from testifying about land grabbing in the area to a senate inquiry.

Three of the accused—Charoen’s wife, Korn-uma Pongnoi, Ladda Singlek and Chaiyos Kaenthong—were found guilty, but in passing sentence on 17 August 2005 Judges Suwit Thonphanit and Omruedee Phongsai took into consideration that their actions had been an expression of stewardship of natural resources and the environment, which everyone in the nation is obliged to help protect.

Screen Shot 2015-12-10 at 11.24.11 AM(Section 56[1] of the 1997 Constitution: “The right of a person to give to the State and communities participation in the preservation and exploitation of natural resources and biological diversity and in the protection, promotion and preservation of the quality of the environment for usual and consistent survival in the environment which is not hazardous to his or her health and sanitary condition, welfare or quality of life, shall be protected, as provided by law.”)

The court found that the group was acting in national interests but the methods used were disproportionate and in violation of the law. Thus there were extenuating circumstances in accordance with section 78 of the Penal Code, which provides that where such circumstances exist a sentence may be cut by as much as half. The five were found guilty but the two-year jail term imposed was reduced to 18 months and then suspended for two years.

The two confessed killers of Charoen both died in prison. Prachub Hinkaew died on 21 March 2006, before the hearings to obtain witness testimonies were due to begin: reportedly from a bacterial infection. Then as the hearings were getting underway, on 3 August 2006 Saneh Lekluan also died in prison, this time reportedly due to blood circulation failure as a result of malaria. Both men are understood to have contracted HIV/AIDS. However, an August 9 report in the Bangkok Post newspaper cited the prison hospital director as saying that Saneh had not shown symptoms of malaria before he died. Although many persons questioned how both of the key witnesses could be allowed to die in the months just before the trial and the relatives of the two gunmen had reportedly earlier said that they did not expect that the men would get out of jail alive, no independent autopsies were known to have been conducted on the bodies of the two. The director of the Department of Special Investigation under the justice ministry reportedly assigned an officer to investigate the two deaths, but no information was made known publicly about any findings. The investigation into Charoen’s killing remains unresolved.

THAILAND: Lower courts set important precedent on constitutional rights

(AHRC Statement AS-127-2006, 31 May 2006)

Last week two lower courts in southern Thailand made important decisions with wide implications for human rights and constitutional law in Thailand. On May 23 the southern Trang Provincial Court ruled that by destroying his April ballot paper in protest at the incumbent government, Tossaporn Kanchanapamornpat had not broken the election law. It said that as the higher courts had invalidated the vote, Tossaporn was exercising his right under article 65 of the 1997 Constitution “to resist peacefully any act committed for the acquisition of the power to rule the country by a means which is not in accordance with the modes provided in this Constitution”. On the same day, the Songkhla Provincial Court gave the same ruling in a case against Dr Kriangsak Liewjanpatana and six others accused of the same offence. In so doing, the courts effectively concluded that this article under the constitution could be directly enforced, without any mediating law, over and above the provisions of an ordinary domestic law.
Although the Constitution of Thailand is the country’s supreme law, the courts have been reluctant to invoke its provisions directly. Its article 6 holds that, “The provisions of any law, rule or regulation which are contrary to or inconsistent with this Constitution shall be unenforceable.” However, in reality the courts have awaited the enactment and revision of domestic law in line with the constitution, and to some extent, guidance from the higher judiciary, before acting on its provisions. As a consequence, there are still many domestic laws being enforced in Thailand today that are contrary to constitutional law. There are also many constitutional provisions for which no equivalent legislation has been written, making it difficult for complainants to obtain redress for want of legal and institutional avenues.
In recent years, the Thai courts have sought to avoid the implications of the many contradictions and gaps found between the constitution and subordinate laws, as more and more defendants and litigants alike have invoked their constitutional rights in opposition to particular statutes and regulations, or the lack thereof. This has caused confusion and discomfort, as article 28 of the constitution clearly states that, “A person whose rights and liberties recognised by this Constitution are violated can invoke the provisions of this Constitution to bring a lawsuit or to defend himself or herself in the court.”
In practice, the courts have been reluctant to recognise appeals direct to the constitution, and have rejected cases argued on constitutional grounds through narrow interpretations of existing law and criminal procedure. In February, for instance, the Angthong Provincial Court convicted Sathien Janthorn of setting up a community radio station illegally. The 1955 law under which he was convicted itself appears to violate articles 39 and 40 under the new constitution, and Sathien based his defence upon his constitutional rights to broadcast. However, the court decision had the effect of giving the 50-year-old statute precedence over the constitution.
In January, the Criminal Court in Bangkok sentenced one out of five police officers charged in connection with the abduction and forced disappearance of human rights lawyer Somchai Neelaphaijit to three years in prison for coercion. It has been established that the police abducted and probably murdered Somchai, and it is widely accepted that the five defendants in the original criminal case were all involved. Article 31 of the constitution protects “the right and liberty in… life and person”, and stipulates that, “No arrest, detention or search of person or act affecting the right and liberty under paragraph one shall not be made except by virtue of the law.” However, for want of a specific law on abduction and forced disappearance by state officers, the constitution could not be effected. Victims of torture defending themselves against fabricated charges have faced similar difficulties. Although article 31 also prohibits torture and cruel or inhumane punishment, again the absence of an enacting law places this constitutional right beyond the reach of the ordinary person.
The judiciary has long been the weakest leg of the Thai state. Historically, the role of the courts has been limited to enforcing legislation and cooperating with the executive with a view to obtaining a stable society. The interpretative role afforded the courts in other jurisdictions, and their importance in counterbalancing the authority of the executive and legislature, had not until recently been recognised in Thailand. As a consequence, powerful politicians and businesspeople together with elite military officers, corrupt police and bureaucrats for decades controlled national affairs uninterrupted. The end of military dictatorship in 1992 and progressive constitution in 1997 opened the door for the courts to play a new role in shaping the country’s future, particularly with the introduction of two new superior courts. However, it has taken some years for the new possibilities to be recognised and seized.
The Asian Human Rights Commission calls upon all judges, lawyers, journalists and other concerned persons to study these cases closely and actively engage in the growing discussion on the role of all courts in building a body of constitutional jurisprudence in Thailand. The effects of the judgments in Trang and Songkhla should be felt not only in the remaining cases of ballot paper protests, but in all hearings and appeals pending before the courts where constitutional rights have been directly invoked. And in view of the growing number of cases before the courts where citizens are seeking remedies from—or defending themselves against—state agencies on constitutional grounds, the Asian Human Rights Commission renews its call for an avenue for direct complaints to the country’s higher judiciary on this basis.
The debate on the authority of the Thai courts in enforcing constitutional rights is now on in earnest: if as a consequence the means to enforce these rights can be institutionalised, then a foundation will be laid for the judiciary to have an ongoing and active role in ensuring that they are found not only on paper but also in reality. In the meantime, the movement of the courts towards quickly taking up and addressing cases in the public interest is itself very welcome. It is in this way that a judiciary slowly emerges as a protector of basic rights, and as this trend continues in Thailand it can be expected to have positive effects for everyone in the country.
article 2 June 2007 Vol. 6, No. 3
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