Editorial board, article 2
Human rights, the rule of law and constitutionalism in Thailand have been set back many years since the return to power by the military on 19 September 2006. Within hours of taking power, the coup group, headed by General Sonthi Boonyaratglin, abrogated the 1997 Constitution and abolished the Constitutional Court and introduced a swathe of other measures that would allow for the army to proceed with its own agenda over the subsequent months, behind other facades: among them, the writing of a new bogus constitution and use of the senior judiciary and criminal investigators to take action against the former prime minister and his political apparatus.
Shortly thereafter, this publication carried an article on the coup by the Asian Human Rights Commission (AHRC) that rightly anticipated the real intentions of the military and spoke to the extent of damage that it would cause to the nascent constitutionalism of 1997 (‘Thailand: The return of the military & the defiance of common sense’, article 2, vol. 5, no. 5, October 2006). The AHRC noted that whereas earlier constitutions in Thailand had served only to validate the power of the ruling group, the 1997 Constitution was the first to be written with widespread involvement and the public interest genuinely at heart.
One of the important features of the 1997 Constitution, the article recalled, was that it made significant changes to the management of criminal justice in Thailand. Quite apart from the provisions in the chapter on rights and liberties, the constitution also guaranteed many procedural rights. These included strict limitations on the police making arrests without warrants and handing the power of issuing warrants to the courts (section 237); consideration of bail application “without delay”, the setting of reasonable amounts for bail, and grounds being given where bail is refused and the right to appeal (section 239); the right to a speedy, continuous and fair trial, and to a lawyer during interrogation (section 241); and, witness and victim protection (sections 244 & 245), which paved the way for the country’s first law on witness protection and a government office to deal with protection matters (see the special report, ‘Protecting or perverting justice in Thailand?’, article 2, vol. 5, no. 3, June 2006). It also allowed for innocent persons who had been wrongly detained by state officers to claim compensation (section 246). (See appendix for extracts from these and other sections.)
Many of the provisions of the 1997 Constitution have now been incorporated into the country’s law on criminal procedure and also codified in other specific laws. However, those provisions and laws, and the institutions intended to give them life, are facing new immense challenges, both as a result of the perversion of justice institutions during the time of the government of Thaksin Shinawatra, himself a former police lieutenant colonel, and even more so, since the resumption of military control of government in Thailand.
This special edition of article 2 furthers this discussion at a time that the survival of constitutionalism in Thailand is under serious threat. In part it is a celebration of the 1997 Constitution amid limited debate about an inferior and non-participatory substitute, the draft 2007 charter, and in part it is a call for the end to military interference in the affairs of the civilian population there. It includes an article by the director of the AHRC as well as one on the 1997 Constitution and political history of Thailand by Dr Thanet Aphornsuvan of Thammasat University, written some years prior to the coup.
At the heart of the edition is a set of human rights cases decided by the courts in Thailand under the principles and provisions of the 1997 Constitution. These show how prior to September 2006 some courts were correctly absorbing and interpreting the approach of the constitution to protection of human rights in cases where state officers were concerned. They include cases in favour of petitions and actions by local residents to protect the environment, the right to assemble and demonstrate, and the rights of special groups in society, as well as rights to free expression and privacy.
Some would say that the process of bringing the provisions of the constitution into the activities of the courts was too slow; however, it is normal for the courts to proceed with caution and a degree of conservatism when matters of intense public interest are being decided. This was in fact the characteristic of courts in the United States that in the 19th century Alexis de Tocqueville noted was their great advantage in addressing matters of national importance was that they could only make changes to law and political life “little by little… [through] repeated blows”. Unfortunately for Thailand, with the changing again of the constitution under force of the military, it remains to be seen where and how the judiciary in Thailand may land its blows in the near future
The constitutional tribunal: A single blow
one circumstance in which a blow from Thailand’s judiciary is apparently now assured is when it is presented with an unequivocal target, such as at the end of May 2007, when senior judges participated in a charade to dissolve the former ruling party that was not of their making but was, thanks to their acquiescence to the country’s military regime, made to appear one of their doing.
The military-appointed Constitutional Tribunal—comprising of six Supreme Court judges and three Supreme Administrative Court judges, including their presidents—on May 31 dissolved the Thai Rak Thai party on grounds of endangering and acting against the democratic state under the 1998 Organic Act on Political Parties, and removed the electoral rights of over one hundred party board executives, including Thaksin, for five years in accordance with Announcement No. 27 of the military coup group. Thus a group of judges appointed by an unelected and antidemocratic military regime made a decision on the actions of an elected political party that was alleged to have undermined democratic process. The decision was made on the basis of law established under a constitution that was scrapped by that very same military regime, with punishment approved and meted out to a group of individuals under one of its orders.
A number of previous issues of article 2 dealt clearly and explicitly with the former government’s gross human rights violations, abuses of power, wanton manipulation of national institutions, blatant disregard for international standards and the rule of law and strengthening of the police as an agency for crude infringements upon citizens’ lives (see for instance ‘Rule of law versus rule of lords in Thailand’, vol. 4, no. 2, April 2005; and, ‘Extrajudicial killings of alleged drug traffickers in Thailand’, vol. 2, no. 3, June 2003). So there can be no doubt about what sort of government was in power up to last September. But let there also be no doubt that neither this ostensible tribunal nor the junta that birthed it could do anything other than make things worse. As has become painfully clear since last September, the military is set upon dragging the country back to a 1980s model of authoritarian control, and has spent most of its energies since in getting all necessary institutions firmly under its command before it steps down from its caretaker role.
However, whereas the army cannot be expected to protect the interests of the judiciary, when judges themselves are responsible for rubbishing their own institutions then what are the consequences? Quite aside from the effect of the May 31 decision on political parties, the real unanswered question is what effect will this judgment have on the courts, and notions of the rule of law and constitutional order in Thailand?
For an answer, there is an important and highly relevant precedent, although it is not among those from former military takeovers in Thailand that the judges cited in their ruling. Rather, it is from the Supreme Court of the United States, which in 2000 was asked to decide on a handful of votes in Florida upon which the presidency was to be decided. Although the court upheld the petition of the current incumbent, four dissenting judges made clear that they should never have taken up the matter in the first place. Justice Breyer opened his dissenting opinion by flatly observing that, “The Court was wrong to take this case.” He continued
Of course, the selection of the President is of fundamental national importance. But that importance is political, not legal. And this Court should resist the temptation unnecessarily to resolve tangential legal disputes, where doing so threatens to determine the outcome of the election.
He concluded that above all else in cases of immense political importance the courts should be extremely wary to wade in and find a solution without carefully examining their standing and the consequences of their actions:
Those who caution judicial restraint in resolving political disputes have described the quintessential case for that restraint as a case marked, among other things, by the “strangeness of the issue,” its “intractability to principled resolution,” its “sheer momentousness, . . . which tends to unbalance judicial judgment,” and “the inner vulnerability, the self doubt of an institution which is electorally irresponsible and has no earth to draw strength from.” Bickel, [The least dangerous branch, 1962], at 184. Those characteristics mark this case.
At the same time, as I have said, the Court is not acting to vindicate a fundamental constitutional principle, such as the need to protect a basic human liberty. No other strong reason to act is present… And, above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public’s confidence in the Court itself. That confidence is a public treasure. It has been built slowly over many years… It is a vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself… we do risk a self-inflicted wound—a wound that may harm not just the Court, but the Nation.
I fear that in order to bring this agonizingly long election process to a definitive conclusion, we have not adequately attended to that necessary “check upon our own exercise of power,” “our own sense of self-restraint.” United States v. Butler, 297 U. S. 1, 79 (1936) (Stone, J., dissenting). Justice Brandeis once said of the Court, “The most important thing we do is not doing.” Bickel, supra, at 71. What it does today, the Court should have left undone.
Justice Stevens went further. What underlay the petition to the Supreme Court, he said, was “an unstated lack of confidence in the impartiality and capacity of the state judges” to do their jobs. And he continued,
The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.
It is worthy to note just how many of Justice Breyer’s and Stevens’s observations are applicable to what happened in Thailand this May (leaving aside the fact that the tribunal in Thailand had no constitutional principle to consider, in the absence of any constitution worthy of the name). Nothwithstanding, the warning about the dangers to public confidence caused by incautious handling of a highly-politicised and loaded case went unheeded in Bangkok as it had done in Washington DC: a single blow, not hundreds of little ones, brought down the Thai Rak Thai party. But that is not all that it hit.
The coup of September 19 was itself an enormous demonstration of a lack of confidence in the capacity of the senior judiciary to resolve thorny political and legal problems and review the legality of government actions in Thailand. By appointing a new tribunal in the stead of the Constitutional Court and in the absence, for practical purposes, of any constitution at all, setting it on the former ruling party, the coup group cynically called upon the tribunal members not only to endorse the army’s displacement of the preceding political order, but also its attack on an emerging legal order that may in time have posed a threat to its interests. By complying, the judges wounded their own authority and greatly risked lasting damage to public confidence in their integrity. Whether or not time will one day heal the wounds in Thailand remains to be seen, but as in the United States seven years earlier the identity of the real loser was undoubtedly the nation’s confidence in the courts. Indeed, given the amount of attention it received, the decision will have caused a great deal of confusion about the role of the judiciary in its entirety.
Justice versus legality
In the lead up to the tribunal’s May decision, the King of Thailand spoke twice about the importance of judges “maintaining justice”. The king pointed out that more than ever there was a question of public confidence in the judiciary and that the courts would be vital to the peace and survival of the country.
The question that these remarks naturally prompt is whether or not it is possible to maintain any kind of justice in the contaminated moral and political atmosphere of a military dictatorship? What happens to justice when the army throws away
the only genuine constitution that the country ever had? What happens to justice when it shuts down a higher court and sets up something else in its stead?
Here the distinction between justice and legalism is important. A strict adherence to legality is certainly possible under any kind of government, as observed by a British law lord, Steyn:
History has shown that majority rule and strict adherence to legality is no guarantee against tyranny… in Nazi Germany, amid the Holocaust, pockets of the principle of legality (for what it was worth) sometimes survived. In Nazi Germany defendants sentenced to periods of imprisonment before the Second World War were left alone during the terms of their sentences. Only when their sentences expired did the Gestapo wait for them at the gates of the prisons and transport them to the death camps. So even in Nazi Germany an impoverished concept of legality played some role…
In the apartheid era millions of black people in South Africa were subjected to institutionalised tyranny and cruelty in the richest and most developed country in Africa. What is not always sufficiently appreciated is that by and large the Nationalist Government achieved its oppressive purposes by a scrupulous observance of legality. If the judges applied the oppressive laws, the Nationalist Government attained all it set out to do. That is, however, not the whole picture. In the 1980s during successive emergencies, under Chief Justice Rabie, almost every case before the highest court was heard by a so-called “emergency team” which in the result decided nearly every case in favour of the government. Safe hands were the motto. In the result the highest court determinedly recast South African jurisprudence so as to grant the greatest possible latitude to the executive to act outside conventional legal controls.
Another example is Chile. Following the coup d’etat in September 1973, thousands were arrested, tortured and murdered on the orders of General Pinochet. The civilised and constitutionally based legal system of that country had not been formally altered. It was not necessary to do so. The police state created by General Pinochet intimidated and compromised the judiciary and deprived citizens and residents of all meaningful redress to law…
Here I pause to summarise why I regard these examples of some of the great tyrannies of the twentieth century as containing important lessons. They demonstrate that majority rule by itself, and legality on its own, are insufficient to guarantee a civil and just society. Even totalitarian states mostly act according to the laws of their countries. They demonstrate the dangers of uncontrolled executive power. They also show how it is impossible to maintain true judicial independence in the contaminated moral environment of an authoritarian state. (‘Democracy, the Rule of Law and the Role of Judges’, The Attlee Foundation Lecture, 11 April 2006).
Thus, simple adherence to the law is not sufficient to ensure justice. This is the fundamental distinction between the rule of law, and the rule by law. So upon what does justice, as opposed to legality, depend?
First, justice depends upon all persons being subject to ordinary laws and courts. But today in Thailand, certain categories of persons are beyond the law. Soldiers, police and other officials acting under emergency regulations in the south, or martial law that remains in effect in over half of the country, are protected from prosecution for acts that would otherwise be considered criminal. The coup leaders have also had an immunity clause for themselves inserted into the interim constitution, which will be carried over in some form or another after their time is up. Hence, there are no grounds upon which calls for justice can be made in Thailand until these differences before the law are addressed.
Second, justice depends upon some kind of judicial review of executive and legislative actions. It means that the courts are capable of commenting upon the legality or illegality of actions by the other parts of the state. Before the army took power last September 19 there had been a strong acknowledgment of the need for judicial review, in light of the many abuses of the former administration. Since that time, all discussion of the notion has ceased. As previously, the superior courts quietly acquiesced to the military takeover, and the judiciary was again made a subordinate, rather than an equal, of the other branches of government: the May 31 ruling being the superlative example of its compliance with the demands of the rulers of the day; hence, rule by, rather than of, law. As in South Africa during the apartheid era, the judges of Thailand have demonstrated to the regime that their hands can be safely relied upon. Thus, until this much more difficult problem of judicial subordination to other parts of government too is addressed, there can be no reason to anticipate a functioning “justice” system in Thailand soon. And unfortunately, whereas the 1997 Constitution had laid the foundations for the building of an independent judicial department of equal strength with the legislature and executive, no such thing can be expected of any constitution devised under the current military regime, no matter how hard it—and the drafters of the charter—may try to make it appear otherwise.
What’s it got to do with anyone anyway?
Around the six-month anniversary of the coup, a Bangkok newspaper contained a lengthy interview with a former coup leader, General Suchinda Kraprayoon. The general led the prior military takeover, in 1991. He was forced out of the prime ministership that he took unelected in 1992 after massive protests in Bangkok, in which hundreds were killed and injured. Asked whether or not he still agreed with the idea that it is not necessary for the prime minister to be elected, Suchinda replied that he agrees “100 per cent”, and continued
And I don’t agree with a constitution so full of details that it is impossible to move. The constitution shouldn’t have many sections, only what’s necessary. It should be written broadly… I also don’t agree with holding public hearings, because what will the people know? Even I myself haven’t read the previous constitutions, because I’m not a person who’s
interested in politics. Go and ask the people how many sections there are [in a constitution]—they don’t know. So for what reason will you hold public hearings? What do the people know? (Matichon, 12 March 2007)
General Suchinda revealed the real thinking of Thailand’s coup leaders, whether 2006, 1991 or earlier. In its plainest terms, it consists of the following: ordinary people know nothing; politicians have no legitimacy; constitutions are irrelevant. The question that must then be asked is, what kind of constitutionalism can be developed under persons who have no genuine interest in constitutions?
In modern times, the basic tool for establishing a functioning state and building institutions on rule of law principles is a constitution. While not universally applied, and none are perfect, all constitutions establish guidelines for the functioning of the state that minimise arbitrariness, together with institutional arrangements to ensure the rational settling of disputes. Where the basic guidelines of a constitution are more-or-less respected and slowly developed, the state too can be expected to progress.
By contrast, a coup is the most arbitrary of all behaviour. It is the ultimate denial of the rule of law. It sends the message that there exist no such guidelines, however imperfect, and that some persons are entitled to act according to another set of standards altogether. In scrapping one constitution and ordering the writing of a new one, coup leaders send out a message that constitutions are unimportant, elected officials have no special legitimacy, and the public has no authoritative voice concerning what goes on in their country. The message is reinforced by statements that reserve the right for the military to conduct future coups whenever so inclined, such as those by one of the current coup group, General Saprang Kalayanamitr, that, “I think that there will always be coups if there is cause for them.” The overall effects are to make the notion of genuine constitutionalism anyhow meaningless, whether or not something labelled as a “constitution” exists.
Thus, coup leaders feel comfortable to let some people go on drafting a new supreme law, knowing that it anyhow doesn’t apply to them. The current military regime has even consistently expressed its enthusiasm for the principles underlying the very constitution that it ripped up while at the same time its prime minister has encouraged ordinary folks to get involved in the rigged constitution-writing process. According to some reports, in areas of the country where hearings into the new draft were held the government’s enthusiasm for getting people to attend pointless discussions about the proposed document—in parody of the genuinely participatory meetings that were held across the country in the lead up to the 1997 Constitution—went so far as to use the same sorts of populist techniques as those of the former government that it has so consistently criticised: such as giving participants free lunches and handouts.
In the weeks after the military takeover, the AHRC received a letter from the Office of the Attorney General of Thailand concerning four former government ministers who had been detained without charge by the coup group in the first days after September 19. The letter was in response to an appeal sent on their behalf. In it, the office wrote that
We would like to inform you that we understand your anxiety, but your complaint mentioned above concerns the Coup d’Etat by the Council for Democratic Reform, which is not related to the authorities and functions of [the] Office of the Attorney General.
In one sentence, a government bureaucrat inadvertently captured the problems at the heart of Thailand’s struggle for constitutional survival. Ordinary private citizens, judges, petty functionaries and all other persons outside the circle of power defined by the coup group and its confidants have since last September been ordered to return to their historical role as spectators of the national stage. They have been given permission to applaud, or even cough politely or boo occasionally, but they are no longer entitled to participate. Constitutionalism, the rule of law, human rights: these are not for them to decide. Despite rhetoric to the contrary, a facade of legality, not justice, is the best that can be hoped for under the regime in Thailand today. The prospects for a return to incipient genuine constitutionalism, rather than the fraud that is now in the making, begin only once the military is gone. But it will be a long road back to where Thailand was before September 19—despite all the damage caused by the then-government—and its way will be far from smooth.
Two judges and a bureaucrat
As this edition of article 2 was going to print, a remarkable recording was released that if true exposes the extent to which Thailand’s senior judiciary is compromised and controlled by outsiders. The recording, made public by Jakrapob Penakir, a spokesperson of the former civilian regime and opponent of the military junta, is purportedly of a telephone conversation in mid- 2006 between a top government official nicknamed “Phi Phed” and the then-secretary of the Supreme Court, Virat Chinvinijkul, together with Pairote Navanuch, a judge of the court. The parties discuss the problem of getting the members of the Election Commission to resign their posts over various serious allegations in connection with the former government, to pave the way for fresh elections (which were never held due to the military coup).
In the recording, the secretary and senior official share ideas on ways to get the commissioners to resign. The latter requests advice on how the government should proceed and is advised that if the commissioners do resign then the Supreme Court will appoint its own people in their stead (under section 138 of the 1997 Constitution). Then the government officer wonders what can be done about the fact that there are cases pending against the election commissioners in the Criminal Court and
Administrative Court. Virat reassures him that, “I can say that the resigning of the Election Commission would have a good effect on the case(s) under prosecution…”
Further on, before Judge Pairote is brought into the conversation, the court secretary refers to him as having a “link” with the president of the Privy Council, the former unelected prime minister, General Prem Tinsulanonda. This link daily goes to the latter’s house before the Supreme Court meets, whereafter the general puts in a call to the president of the court. Subsequently, Judge Pairote speaks directly with the senior official and agrees that the members of the Election Commission must be forced to resign and again guarantees that the criminal cases pending against them will be closed thereafter. The officer says that he will go and speak to the head of the commission personally, to which Judge Pairote replies, “You must tell him, or else it won’t be safe for him.” Of course, the commissioners refused to resign, forcing the judiciary’s hand despite their attempts to avoid having to act on the case.
The recording is remarkable not only because it brings out the full truth of the extent to which the senior judiciary in Thailand has been subordinated to other parts of government but also because it shows how far removed it has been throughout the entire political and constitutional crisis from basic notions of legality. At no point does the upholding of justice, rather than political expediency, appear to have seriously entered the minds of its most senior persons. Rather, the contents of the recording boil down to this: a top judge and court official together with a senior government officer make a deal to get some people to quit their jobs, in exchange for which the courts will dispense with criminal procedure and justice and instead just let them off the hook. There is no thought of law here, just horse trading. The court is anyway subject to daily interference by outsiders. And that was before the September 19 coup: the May 30 special tribunal verdict against the former ruling party is an indication of how much worse things have become since, and how much worse they are yet to become.
Despite its contents, the recording—the veracity of which has not been denied—barely attracted any attention in the domestic media, and nor any details made known to the public, speaking to the very real fear and heightened control in Thailand under the military regime today. Thus, for the sake of public debate and simple openness, an edited version of the transcript is contained as an appendix to this report.