Statement of the Nitirat (Enlightened Jurists): The Unconstitutionality and Illegality of the Promulgation of Martial LawSubmitted by prachatai on Tue, 20/05/2014 - 20:07
General Prayuth Chan-ocha, the Commander-in-Chief of the Royal Thai Army, signed Announcement No. 1/2557  of the Royal Thai Army, on the matter of the promulgatเon of the Martial Law Act, on 20 May 2557 . Following examination, it is the view of the Khana Nitirat that the aforementioned announcement of the Royal Thai Army is unconstitutional and illegal. This is the case for the following reasons:
1. Article 188 of the 2007 Constitution of the Kingdom of Thailand (hereafter “Constitution”) stipulates that, “The King has the prerogative to declare and lift the martial law in accordance with the conditions and manner under the Martial Law Act.” The second paragraph notes, “In the case where it is necessary to declare the martial law in a certain locality as a matter of urgency, the military authority may do so under the Martial Law Act.” Article 195 stipulates that, “All laws, Royal Proclamations and Royal Commands relating to State affairs must be countersigned by a Minister unless otherwise provided in this Constitution.” Article 2 of the Martial Law Act of 2457  (hereafter “Martial Law Act”) stipulates that, “Whenever there is necessity to preserve good order so as to be free from external or internal danger, a Royal Proclamation may be issued enforcing all or certain sections of the Martial Law or part of any section of it including the conditions under which such provision or provisions shall apply to the whole or any part of the Kingdom; and after the proclamation has been made at any time or in any area, all the provisions of any act or law which are inconsistent with the provisions of the Martial Law Act which is in force shall be suspended and replaced by the provisions of the Martial Law Act which is in force.” From the legal provisions in the Constitution and in the Martial Law Act as noted above, the Khana Nitirat views that promulgation of martial law, especially when it applies to the entire Kingdom, is the Royal Prerogative of the King, and therefore should be promulgated in the form of a Royal Proclamation, which must be countersigned by a Minister. It is not the prerogative of the Commander-in-Chief of the Army.
2. The promulgation of martial law for one specific area is the prerogative of the commander of the military in that area who has no less than one battalion under his command, or if he is the commander of a given military fort or base as outlined in Article 4 of the Martial Law Act, and it must be a case of the outbreak of “war” or a “riot.” When the facts of what has occurred are examined, it does not yet appear that there has been an outbreak of “war” or a “riot” in a given area, which would be the reason for the commander in that area, or the commander of a given fort or base, to have the authority to promulgate martial law. Furthermore, if authority is used to promulgate martial law in line with this article, the person who promulgates it must inform the government as soon as possible. This establishes that although there has been the promulgation of martial law by soldiers due to a war or riot in a given area, the soldiers do not have power over the civilian government.
3. Announcement No. 1/2557  of the Royal Thai Army referred to the situation of political demonstrations by many groups in Bangkok and the surrounding areas, and in various areas of the country, in order to promulgate martial law across the entire Kingdom. When the facts of what has occurred are examined, the political demonstrations in Bangkok and the surrounding areas do not extend to the entire country. The promulgation of martial law for the entire country is therefore in excess of necessity and incompatible with principles of reason and proportion that demand that the limitation of rights and liberties must be carried out only as necessary. This is a basic principle of the Constitution. Furthermore, in the case of a situation in which there is violent unrest and disorder to the degree that special measures must be used to control and solve the problem, the government is able to use two special measures of law. These actions would be to declare a state of emergency following the Emergency Decree on Public Administration in a State of Emergency of 2548  or to declare the Internal Security Act of 2551 , without any need to promulgate martial law.
4. Upon examination of the provisions of law and the facts noted above, it is the view of the Khana Nitirat that Announcement No. 1/2557  of the Royal Thai Army, on the matter of the promulgatเon of the Martial Law Act, issued on 20 May 2557  is unconstitutional and illegal. This is because the Commander-in-Chief of the Royal Thai Army is not an organization or official who has the authority to promulgate martial law to be enforced throughout the Kingdom, and the promulgation of the aforementioned Martial Law Act has not been carried out in the manner that the law stipulates. That is, it cannot be carried out as a Royal Prerogative , but actually be carried out in the form of an “Announcement of the Royal Thai Army.” The lack of power of the “official” and wrongdoing mentioned above constitute a grave and clearly evident error. Therefore, this makes Announcement No. 1/2557  of the Royal Thai Army, as well as subsequent announcements, without legal force.
However, in order to dispel the argument of whether or not the aforementioned promulgation of martial law has legal force, and in order to dispel confusion among civil servants and officials of the government, and also ordinary individuals, about whether or not they must follow the Announcements of the Royal Thai Army, the Khana Nitirat proposes therefore for a responsible Minister to present a draft of a Royal Command to Revoke Announcement No. 1/2557  of the Royal Thai Army to His Royal Highness the King for his signature in order to revoke the promulgation of martial law in line with Article 5 of the Martial Law Act of 1914.
Nitirat: Law for the People
20 May 2557 
The statement was translated into Englishby Tyrell Haberkorn