Nitirat, a group of law academics at Thammasat University, has announced two activities to be held in January next year to campaign for amendments to Article 112 and the nullification of the 2006 coup’s legal effects, as has been proposed to the public by the group.
‘We’ve listened to all the feedback, heeding both support and criticism. We intended to push our proposals steadily further, but then came the floods; so we had to stop for a while. Meanwhile, we were repeatedly asked what we would do next. Some said that it was a pity that the floods came, otherwise we would move forward. However, we’ve never stopped thinking about our proposals, always reconsidering, reviewing and refining the details, and we are determined to push them to reality,’ said Piyabutr Saengkanokkul, a member of the Nitirat group.
According to Piyabutr, a campaign will be launched on 15 Jan 2012 by the ‘Campaign Group to Amend Article 112’, which includes academics, writers, artists, journalists, activists and students, to collect signatures to propose legal amendments to Parliament, based on Nitirat’s proposal.
Nitirat proposed amendments to the law in March, but the issue has not yet been much debated by the public, whereas the number of victims abused under the law has increased, he said.
On 22 Jan 2012, there will be a further push for their call to nullify any legal effects of the 2006 coup.
‘Incidentally, 2012 will mark the centenary of the Ror Sor 130 rebellion [a failed coup attempt by a group of military men and intellectuals against King Rama VI in 1912, which inspired the People’s Party’s overthrow of the Absolute Monarchy two decades later], and the 80th anniversary of the 1932 revolution. On this occasion, we will hold academic activities to support a democracy which upholds the people’s sovereignty all through next year, focusing on the writing of a new charter and nullification of the 2006 coup’s legacy,’ he said.
Nitirat will distribute pamphlets containing Q&A’s regarding its proposals to nullify the legal legacies of the 2006 coup.
‘We have come up with this pamphlet because we realize that our proposals have been presented in legal language, which is probably difficult to understand. So we have tried to reproduce them in plain language so that the public can use them to make their arguments,’ he said.
‘Since we published our proposals to nullify the coup’s effects, there have been numerous questions and criticisms, made by those who either genuinely don’t understand, pretend not to understand, or don’t even read them but want to censure us. On 22 Jan 2012, we will address all the points which have been raised against our proposals in the past several months,’ he said.
On that day, the Nitirat will further propose to the public their idea of how to conceive a whole new constitution.
‘These two activities are meant to mobilize the public’s thinking. We will continue doing so until “the supreme national power belongs to all the people,” and “all humans are born free and equal in terms of dignity and rights,” according to the intention of Nitirat when it was formed,’ he said.
Here is the programme of activities in January 2012:
Campaign for amendments to Article 112, on Sunday 15 Jan 2012, starting from 1 pm, at Sri Burapha Auditorium, Thammasat University, Tha Prachan Campus:
• Launch of the ‘Campaign for Amendments of Article 112,’ to collect signatures to propose a bill to amend Article 112, as proposed by the Nitirat;
• Other academic and campaigning activities
Nullification of the 2006 coup’s legal effects, on Sunday 22 Jan 2012, starting from 1 pm at Jeed Setthabutr or LT 1 room and Pridi Kasemsap or LT 2 room, Faculty of Law, Thammasat University, Tha Prachan Campus.
Point # 1
The Nullification of the Resultant Effects of the 19 September 2006 Coup
The 19 September 2006 coup was an illegal act. The coup destroyed the rule of law and democracy. The coup remains the primary cause of political conflict from then until the present. For this reason, the Khana Nitirat proposes the nullification of the resultant effects of the 19 September 2006 coup as follows:
1. Declare the coup and the various resultant legal actions of the Council for Democratic Reform under the Constitutional Monarchy (CDRM) from 19 to 30 September null and void, as if they never happened, and without legal consequence.
2. Declare Articles 36 and 37 of the 2006 interim Constitution null and void, as if they never happened, and without legal consequence.
3. Declare the rulings of the Constitutional Tribunal, the rulings of the Constitutional Court, and the judgments of the Supreme Court’s Criminal Division for Persons Holding Political Positions made under the authority of the Council for Democratic Reform under the Constitutional Monarchy (CDRM) null and void, as if they never happened, and without legal consequence. Declare the rulings of the Constitutional Tribunal, the rulings of the Constitutional Court, and the judgments of the Supreme Court’s Criminal Division for Persons Holding Political Positions resulting from the 19 September 2006 coup, in particular all of the rulings and judgments resulting from processes initiated by the Assets Examination Committee (AEC), which was instigated by the Council for Democratic Reform under the Constitutional Monarchy (CDRM), null and void, as if they never happened, and without legal consequence.
4. Declare the matters under consideration both by officials of the National Anti-Corruption Commission, the Anti-Money Laundering Office, and the Office of the Auditor General and those that have been sent to the court discontinued.
(Note: The Assets Examination Committee was only in existence for one year, as mandated by Declaration # 30 of the CDRM, issued on 30 September 2006. At the end of its term, its responsibilities were transferred to the National Anti-Corruption Commission, the Anti-Money Laundering Office, and the Office of the Auditor General. -- Translator.)
5. The declaration of the rulings and judgments in (3) null and void and the discontinuation of the proceedings in (4) do not constitute an amnesty or a pardon or an absolving of those individuals accused of wrongdoing. This is not an expunging of all of the actions of those individuals accused of wrongdoing. Therefore, new cases can be started against those relevant individuals in accordance within the standard legal process.
6. The Khana Nitirat proposes that the above points become the draft of a constitutional amendment. For democratic legitimacy, this should then be brought to the people as a referendum.
Point # 2
Revision of Article 112 of the Criminal Code
In line with the proposal made by the Khana Nitirat regarding the revision of Article 112 of the Criminal Code, which was made public on 27 March 2011, the following is proposed:
1. The Khana Nitirat maintains that there are problems with the legality, use and ideology of Article 112 of the Criminal Code, and it must be revised. Relevant stakeholders should not deny that Article 112 of the Criminal Code is without problems and without need for revision insofar as this has not yet been fully studied or widely debated.
2. The Khana Nitirat observes that Article 112 of the Criminal Code has a problem with regards to its constitutionality. This is especially the case on the point of balance between the severity of the crime and of the punishment meted out to those who have committed offences. This is not in accordance with Article 29 of the Constitution, which mandates that punishment must be proportional to the offence committed.
3. The Khana Nitirat proposes that the Law Reform Commission should arrange for opinion hearings from the people on the issue of Article 112 of the Criminal Code, in order to then advise the Cabinet in line with Article 19 (3) of the Law Reform Commission Act of 2010.
Point # 3
The Judicial System and Detainees and Defendants
The Treatment of Victims After the 19 September 2006 Coup
Thailand fell into a situation of continual political conflict due to the 19 September 2006 coup. There were demonstrations by various sides. There was the use of violence. There were people who were accused of wrongdoing. There were people who were suffered losses: life, injury, and property. In order for each side to achieve justice and to mitigate the losses of the people, the Khana Nitirat proposes that the following concrete and urgent actions be taken:
1. The Khana Nitirat disagrees with the promulgation of an amnesty law passed with a hidden goal of ending the process of examining the truth about the violent incidents which have occurred. However, the rights of those accused of committing politically-motivated offences or offences in which a political issue comprises a significant part, must be granted bail in accordance with the due process. This must be done in a manner that is not different from the process of granting bail to those accused of committing ordinary offences. The right to temporary release must be rigorously and objectively examined. When bail or a guarantee is demanded, it must not be in excess of what the situation mandates. These processes should follow the conditions outlined in the final section of Article 110 of the Criminal Procedure Code, which is in line with the principle of the presumption of innocence. Until there is a final judgment against a person that the person has committed an offence, he or she should be treated as a person who is innocent, as guaranteed by Article 39 of the Constitution.
2. Based on the principle of liability of the state, the Khana Nitirat proposes that the Cabinet consider issuing a Cabinet resolution in order to offer help or compensation to all victims, without discrimination, of incidents of political conflict arising since the 19 September 2006 coup. This may be done by establishing a committee with this express responsibility. The rules, methods, and amount of compensation of this committee could come from already-existing law, such as the Compensation for Victims of Crime Act of 2001 and the Assistance to Victims Affected During Government, National, or Humanitarian Service Act of 2000, etc. Accepting the aforementioned compensation will not foreclose the rights of victims to access benefits in line with other laws.
3. The Khana Nitirat propose that the National Human Rights Commission monitor the actions or inactions which result in violations of the human rights of detainees and defendants, which may be perpetrated by various entities in the criminal justice process, in order to propose revised standards to solve the problems of violations of human rights in accordance with Article 28 of the National Human Rights Commission Act of 1999.
Point # 4
Nullify the 2007 Constitution and Prepare a New One
The 2007 Constitution is a resultant effect of the 19 September 2006 coup and therefore lacks democratic legitimacy. Even though the aforementioned Constitution was passed in a referendum, the process of drafting the Constitution and the process by which the referendum was organized was not in line with the principles of democracy.
1. The Khana Nitirat proposes that the Cabinet should propose the drafting of a revised Constitution (“Category 16, Prepare a New Constitution”).
2. The Khana Nitirat observes that the Constitutions which are appropriate for use as prototypes for a new one and guidelines in drafting include the 1932 Temporary Constitutional Charter for the Administration of Siam Act, the 1932 Constitution of Siam, the 1946 Constitution of Thailand, and also perhaps parts of the 1997 Constitution of Thailand with reference to the protection of rights and freedom, as well as the framework of political institutions and Constitutional organizations that are consistent with developments in the contemporary period.
3. In order to not allow the coup to destroy the principles that form the foundation of the rule of law and democracy, the Khana Nitirat proposes to prepare a “Declaration of the Fundamental Value of Liberal Democracy” Even though the declaration will not have the status of law, the declaration will represent the spirit of a liberal democratic system which cannot be destroyed or made to disappear by any individual or method.
4. The “Declaration of the Fundamental Value of Liberal Democracy” will maintain that all humans are born free and equal in dignity and rights. It will maintain that the highest authority belongs to the people. This cannot be taken away from the people by anyone or any method. The state’s fundamental value comes from rule by law that is impartial. The sharing of power is the organizing principle of rule that must always be securely maintained.
5. After the Constitutional Drafting Assembly agrees on a draft Constitution, it should be then approved by a referendum vote.
Khana Nitirat: Law for the People
Tha Prajan, 19 September 2011
Translated by Tyrell Haberkorn
Following the statement by Khana Nitirat on the occasion of the first anniversary of Nitirat and its release to the public on 19 September 2011, it is apparent that the reporting by much of the mass media has created misunderstanding among the public by presenting incorrect and misleading information about Khana Nitirat’s proposal. This has especially been the case with the suggestion regarding “the nullification of the consequences of the 19 September 2006 coup.” In addition, there are people who have raised questions and criticized the proposal who have not studied its details to understand it sufficiently. Therefore, Khana Nitirat deems it appropriate to offer the following clarifications in order for it to be understood correctly:
1. In the statement made on the occasion of the first anniversary of Nitirat and the fifth anniversary of the coup, the Khana Nitirat made a four-point proposal: nullification of the consequences of the 19 September 2006 coup; revision of Article 112 of the Criminal Code; strengthening of the judicial system with respect to detainees and defendants and the treatment of victims after the 19 September 2006 coup; and nullification of the 2007 Constitution and preparation of a new one. Yet it seems as though the media, politicians, and ordinary people have concentrated in particular on the first point about the nullification of the consequences of the 19 September 2006 coup. Khana Nitirat has further observed that some media outlets and one group of politicians have misunderstood our proposal, both intentionally and unintentionally.
2. Khana Nitirat wishes to assert once more that the proposal to nullify the consequences of the 19 September 2006 coup is neither a proposal for an amnesty nor a pardon nor an exoneration of those individuals accused of wrongdoing. This is not a proposal to expunge all of the actions of those individuals accused of wrongdoing. If cases are to be brought against these individuals, they can be brought in accordance within the standard legal process. Therefore, no one should continue to claim that Khana Nitirat has proposed to “whitewash” the wrongdoings of the politicians who were accused and prosecuted from processes instigated by and related to the coup of 19 September 2006.
3. The reason that Khana Nitirat proposed to nullify the rulings of the Constitutional Tribunal, the rulings of the Constitutional Court, and the verdicts of the Supreme Court’s Criminal Division for Persons Holding Political Positions is because the Constitutional Tribunal, the Constitutional Court, and the Supreme Court’s Criminal Division for Persons Holding Political Positions came to address these cases as a result of a declaration by the Council for Democratic Reform under the Constitutional Monarchy (CDRM). Therefore it cannot be denied that the rulings of the Constitutional Tribunal, the rulings of the Constitutional Court, and the verdicts of the Supreme Court’s Criminal Division for Persons Holding Political Positions are a result of the 19 September 2006 coup.
4. The Khana Nitirat asserts that the consequences of the 19 September 2006 coup must be nullified. Yet because the effects of the 19 September 2006 coup have come in a variety of forms, establishing rights and responsibilities and having an impact on many people, then in order to maintain stability in the status of law and safeguard trust, the nullification of the consequences of the aforementioned coup must therefore also show consideration to honest people. For this reason, Khana Nitirat did not propose to nullify the 2006 interim Constitution and the 2007 Constitution in their entirety. The particular sections that Khana Nitirat proposed to nullify were Articles 36 and 37 of the 2006 interim Constitution, since these two provisions were an amnesty for the coup and made various actions of the coup junta constitutional.
5. The nullification of the consequences of the 19 September 2006 coup in line with our proposal can be done within the law. Examples of this have been seen in various civilized countries. The examples include the declaration of the judgments in Nazi Germany as null and void; the declaration of various actions of the Vichy regime in France as null and void; the declaration of the sentences passed on individuals who helped refugees who fled from the Nazis to Switzerland as null and void; the declaration of various actions of the military dictatorship in Greece from the time of the coup on 21 April 1967 to 25 November 1973 as null and void; the cancellation of the privileges and protection of the coup junta of 12 September 1980 from having cases brought against them in Turkey; and the efforts to push the legislature to declare judgments made during the Franco regime in Spain null and void.
6. With regards to the doubts about why the Khana Nitirat proposal to nullify the consequences of the coup was limited to the coup of 19 September 2006 only, the position of Khana Nitirat is to reject every coup that nullifies the Constitution and destroys the rule of the law and democracy. Yet the reason why Khana Nitirat proposed to nullify the consequences specifically of the 19 September 2006 coup above others is because the consequences of the 19 September 2006 coup continue to be felt, and are the primary cause of the political conflict that is now deeply rooted in Thai society.
7. The proposal of Khana Nitirat is built on a foundation of not accepting coups. When the legal-political system functions as usual, the pouvoir constituent belongs to the people. In a democratic regime, the people hold the sovereign position. The nullification of the consequences of the coup is fully legal and legitimate.
Khana Nitirat maintains that our statement was made in the interest of advancing knowledge. It is built on the foundation of a complete rejection of the coup. The statement of Khana Nitirat adheres to the principle of respect for a legal process that is correct and just, the principle of stability in the status of law and safeguarding of confidence in upholding the law, and the principle of equal application of the law. These principles are necessary for the rule of law and democracy. Khana Nitirat will protect these principles with the utmost sincerity.
Khana Nitirat: Law for the People
Tha Prajan, 25 September 2011
Translated by Tyrell Haberkorn