Comments offered by law scholars Nitirat (the Enlightened Jurists) on the Draft Amnesty for Those Who Committed Offences as a Result of the Political Protests and Political Expression of the People B.E…..
Draft Amnesty for Those Who Committed Offences as a Result of the Political Protests and Political Expression of the People B.E…..
A Comment and Proposal to Parliament
This comment and proposal are in reference to the Draft Amnesty for Those Who Committed Offences as a Result of the Political Protests and Political Expression of the People B.E….. which was proposed by Mr. Worachai Hema and his colleagues and has entered consideration by the Parliament. The principle and rationale of the draft bill was to provide amnesty to the people who committed offences resulting from the political demonstrations and political expression, in order to provide opportunities to the people, who are the citizens of the country, to preserve and protect human dignity, and to promote human rights and civil rights. The bill was intended to be a good foundation for the reduction of conflict and the fostering of reconciliation. Subsequently, in the first reading, Parliament voted to accept the principles of the aforementioned draft bill. Then, Parliament established an ad hoc committee in order to examine the bill, and the ad hoc committee voted to amend the aforementioned draft by expanding the amnesty to include, “All actions of persons or people that are related to political demonstrations, political expression, political conflicts or those accused of being wrongdoers by a group of individuals or an entity established after the coup of 19 September 2006, including organizations or agencies who proceeded in relation to the aforementioned matters that occurred between 2004 and 8 2013, whether the person undertaking actions did so as a principal, supporter, someone who ordered [others] to take action, or some who used [by others], if those actions were illegal, the actors are absolved from wrongdoing and all responsibility.” But the draft act does not provide amnesty for individuals who committed offences under Article 112 of the Criminal Code.
During the first reading of the draft bill, Parliament voted to accept in principle the provision of amnesty only to, “Individuals who were involved in political demonstrations, or political expression, or individuals who did not participate in political demonstrations but the motivation of the actions was related or connected to political conflict. By calling through speeches or broadcasting through whatever means to call for or create opposition to the state, self-defense, resistance to the operations of state officials, or rallies, demonstrations, or expressions using any means that could impact life, body, hygiene, property, or any rights of other individuals.” Given the aforementioned passage, when considered along with the principle and rationale of the draft bill that was proposed in the Parliament, it is apparent that the Parliament voted to accept in principle the provision of amnesty to the people, without providing amnesty to state officials who were involved in the dispersal of demonstrations or to political office holders who were accused of committing offences by entities or organizations that were established after the 19 September 2006 coup. The title of the aforementioned draft bill, which is the “Draft Amnesty for Those Who Committed Wrongdoing as a Result of the Political Protests and Political Expression of the People B.E…..” further clarifies that this draft bill aims to only provide amnesty to the people. The amending of the draft bill by the ad hoc committee to include individuals other than the people is therefore an amendment that is inconsistent with the principle of the draft bill that was passed by Parliament during the first reading. This is prohibited following Article 117, 3rd paragraph, of the Rules of Procedure of Parliament of 2008, which prohibits amendments to a draft inconsistent with the bill’s principle during the second reading. As the Rules of Procedure of Parliament are part of the Constitution, this means that the process of legislating this draft bill is unconstitutional.
In addition to the matter of unconstitutionality, the Khana Nitirat has identified the following problems in the draft bill:
1. The amnesty in this draft bill seemingly extends to all state officials that were involved in the dispersal of demonstrations and that led to the injuries and deaths of the people who participated in these demonstrations. In addition to being unjust towards those who sustained losses in the dispersal of protests, this is also in conflict with Thailand’s international legal obligations, in particular, the International Covenant on Civil and Political Rights (ICCPR). This allows state officials that committed violations of the people’s right to life and security of person to evade responsibility, as has been done in the past. In addition to reinforcing and consolidating bad norms, this further habituates state officials, especially soldiers, to take such actions against the people without concern that they will have to accept legal responsibility in the future.
2. The draft bill of the ad hoc committee provides amnesty to the entirety of individuals noted above but stipulates an exception of not providing amnesty to individuals who committed offences according to Article 112 of the Criminal Code; this is the case even though those offences are related to political demonstrations, political expression, or political conflicts. Legislation with this kind of stipulation of exception is contrary and inconsistent with the principle of equality that is enshrined in Article 30 of the Constitution of Thailand, as this principle calls on the state to have treat things that are of the same essence in the same way and to treat things that are of different essences differently. The primary goal of this draft bill is the absolution of offences people committed in connection to political demonstrations, political expression, or political conflict, without taking into account that what type of offence those actions constituted. Therefore, the ad hoc committee’s exclusion of people who committed offences under Article 112 of the Criminal Code that were committed in connection to political demonstrations, political expression, or political conflicts from the provision of amnesty in this draft bill is the different treatment of something that shares the same essence [as offences included]. This is contrary to the constitutional principle of equality.
3. Given that this draft amnesty bill impacts offences that occurred between 2004 and 8 August 2013, a large number of incidents are covered. Many groups of individuals, who were prosecuted according to different procedures, may benefit from it. A state of complexity has arisen for a variety of reasons which has caused there to be many cases in which it is not possible to clearly specify which individuals are within the scope of eligibility for amnesty. Meanwhile, the draft bill assigns authority to inquiry officials, prosecutorial officials or court officials, depending on the cause circumstances, to consider and decide on the aforementioned points [of who is to receive amnesty]. This may result in irregular and disparate rulings and may ultimately create inequality at the level of enforcement of the law.
4. The process of making accusations against individuals by organizations or entities that were established after the 19 September 2006 coup was illegitimate and individuals who were accused and judged guilty should be redressed. However, the aim of this draft bill is to provide amnesty to individuals who committed offences resulting from political demonstrations, political expression, or political conflicts. These offences were committed under different conditions and have different characteristics than the actions of individuals that were accused by entities or organizations established by the Council for Democratic Reform (CDR) of incurring damages for the state. Significantly, in the current situation of social conflict, the proposal to provide amnesty to the aforementioned individuals [of those accused under processes of the CDR] may impede and delay the search for consensus on amnesty for the people, or cause it to not happen at all. In order to solve the problem of injustice experienced by individuals who were negatively affected by the coup, the nullification of the resultant effects of the coup should be undertaken in line with the proposal of the Khana Nitirat.
5. The draft amnesty bill stipulates that the amnesty begin with offences that have been committed since 2004. This is not in line with the provision that was passed in principle during the first reading that the amnesty would apply to actions taken between 19 September 2006 and 10 May 2011. This stipulation of the period of time covered by the amnesty to begin with 2004 may cause some incidents and actions that should not receive amnesty, as they are not related to the 19 September 2006 coup, to benefit from the bill as well.
6. In addition, this draft bill stipulates that for individuals that were accused of offences by entities or organizations that were established after the 19 September 2006 coup, including organizations and agencies with ongoing proceedings, whether the accused individual acted as a principal, a supporter, someone who ordered [others] to take action, or some who used [by others], if the actions were unlawful, the actors are absolved from wrongdoing and all responsibility. In cases in which the court has already reached a final judgment, the absolution of wrongdoing and all responsibility will cause the state to be compelled to provide restoration to those who receive amnesty. For example, in cases where assets were seized by the state, when the accused in these cases is granted amnesty, the state has the obligation to return the assets of the accused that were seized following judgment. Although the Khana Nitirat thinks that the return of seized assets that belonged to individuals accused or judged to have committed wrongdoing by organizations or entities established following the coup and in legal processes linked to the coup is fully just, the return of these assets ought to be via the nullification of the judgments in line with the proposal of the Khana Nitirat about the nullification of the resultant effects of the coup. The return of assets should not be carried out via amnesty as in the draft bill.
Proposal of the Khana Nitirat
Given that the draft amnesty bill has the aforementioned problems, the Khana Nitirat therefore proposes the following means of solution:
1. The individuals who committed offences resulting from the political demonstrations, including individuals who did not participate in the demonstrations but the motivation for the offence was related or connected to political conflict, must be separated from individuals who were accused of committing offences by entities or organizations established after the 19 September 2006 coup.
2. Proceed with providing amnesty to individuals who committed offences related to political demonstrations, including individuals who did not participate in the demonstrations but the motivation for the offence was related or connected to political conflict. Do not provide amnesty to the state officials who were involved in the demonstrations and protests, including the dispersal of protests, whether they acted in the position of a person who gave orders or a person who followed orders, and regardless of the level at which the actions were carried out. This is in line with the Draft Constitution Concerning Amnesty and Eliminating Conflict proposed by the Khana Nitirat.
3. Regarding individuals accused of committing offences by entities or organizations established following the 19 September 2006 coup, the judgments and rulings, as well as the proceedings at every level, that have resulted from the coup should be nullified in line with the Khana Nitirat’s proposal of the Nullification of the Resultant Effects of the Coup.
4. However, as the proposal of the Khana Nitirat was not considered by the involved persons, including those in the group who prepared the draft for the second reading by Parliament, in order to swiftly provide amnesty under the existing constraints to the people who committed or were accused of committing offences related to political demonstrations, political expression, or political conflict, the Khana Nitirat therefore proposes the following actions for consideration:
4.1 The amendment by the ad hoc committee of the draft amnesty bill caused it to be contrary to the principle of the draft bill that the Parliament voted to accept in the first reading. Since this created a problem with the constitutionality of the draft bill, the amended draft bill consequently cannot be used as the basis for the second reading. Therefore Parliament should address these defects by passing a resolution that the process of enacting this bill conflicts with Article 117, 3rd paragraph, of the Rules of Procedure of Parliament of 2008, in order to reject the draft bill of the ad hoc committee.
4.2. For the Parliament to vote to annul the original ad hoc committee and vote to establish a committee of the entire Parliament in order to begin examination of the draft bill in a new second reading.
Khana Nitirat: Law for the People
31 October 2013
Translated by Tyrell Haberkorn.