On the date of 10 December 2014, let us be happy on the commemoration of auspicious Universal Human Rights Day and Constitution Day of Thailand. Shan’t I be happy, I ask myself. I should, but my feeling is so strong that despite these great occasions and the promise of Prayuth Chan O-cha, Prime Minister and Chief of National Council for Peace and Order (NCPO) to bring us happiness, I am not happy. Furthermore, I wonder whether happiness is the real aim of this coup d'etat and whether human rights still persist and prevail against the constitutional turning moment.
In order to understand the origins, purposes and spirits of the Constitution (as well as the coup), I turn to the Preamble of the 2014 Interim Charter which suggests:
“[T]he powers will be exercised for the purpose of preventing the use of force and weapons to threaten the citizens, putting an end to fears and misgivings, and mending economic, social and political problems existing for more than six months…to restore order, love, harmony and justice….”
Perhaps, the text above, “to end the use of force and weapons to threaten citizens and to mend economic, social and political problems existing for more than six months” may be a great picture portraying Thailand’s crisis before the overthrowing of Yingluck’s government; and in another way, the justification for the coup deployment, while the latter text in the Preamble, “to restore order, love, harmony and justice” are, as it seems, the goals of the coup.
“Love, harmony and justice” should easily blend with happiness. Yet, this claim is rather elusive than lucrative, as it is evident that since junta took control the country on 22 May 2014, following the enforcement of Martial Law, BE 2475 (1914), it imposed several announcements and orders (then Interim Charter); and controlled the country with systematic censorships, as well as oppressed free thinking citizens with unproportional allegations, arrests, detentions and prosecutions.
If love is the goal, why not try to hear the people’s voices. If harmony is the way, why use irrational force. And, if justice is the aim, why not respect people’s rights including due process of law. In fact, I wonder whether our rights actually exist at all under this Interim Charter. On the situation like this, I find no greater opportunity to review human rights situation in Thailand than this time.
What are “Human Rights”?
Despite the products of intellectual concepts of ancient philosophers, lawyers, and rulers, the idea of ‘Human Rights’ is just almost universally agreed in the latter half of twentieth century after the two World Wars. According to United Nations, ‘Human Rights’ are ‘the rights inherent to all human beings, regardless of nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status.’Also, pursuant to Article 1 of Universal Declaration of Human Rights, human rights concept is laid down as follows.
“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
These explanations provide two-folded meanings: one is that human rights proclaimed in the Declaration are belonged to everyone, simply because they are human, and the other one is the fundamental principle of human rights is derived from equal worth in ‘human’ or human dignity. However, these explanations still fall short of clarification on the idea of ‘Right’.
The word ‘Right’ is originated from the word ‘Rectus’ in Latin (or ‘Orektos’ in Greek), which means ‘straight’; ‘rule’, ‘proper’, ‘honest’, and ‘upright’, sharing the common meanings with ‘Rju’ in Sanskrit; ‘Uju’in Pali. It has an interconnected conception with ‘justice’ or ‘ius’or ‘iustitia’ in Latin. Although, it is difficult to give a clear distinction between ‘rights’ and ‘justice’, when they come to intertwine witheach other, one represents the entitlement of a person, while the other one represents the right state of governance that effects both the individuals and the society as the whole. Like Cicero suggests, “The foundations of justice are that no one shall suffer wrong; then, that the public good be promoted” (“Fundamenta justitiæ sunt, ut ne cui noceatur, deinde ut communi utilitati serviatur”)and “Justice renders to everyone his due” (“Justitia suum cuique distribuit.”).Furthermore, in the Universal Declaration of Human Rights, although it does not provide clear definitions of ‘human rights’ and ‘justice’, it does reflect the interconnection of the two principles, like it first proclaims in the Preamble:
“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”
But, what are the human rights that are universally accepted then? Adopted on 10 December 1948, the Universal Declaration of Human Rights lists out 30 human rights as follows.
Being non-binding in character and as it aims, the Declaration serves as a common understanding on human rights, yet paves a way for each country to take international obligations once the Declaration is developed and translated into international law. In Europe, inspired by the Declaration, the European Convention on Human Rights together with the European Court of Human Rights has come into force since 1953. This makes the European Convention on Human Rights the first international instrument with enforcement mechanism, in which human rights enshrined by the Convention are protected and enforced by the European Court of Human Rights. However, these effective measures are only limited within European Community.
At global level, following the Universal Declaration of Human Rights, two branches of human rights under the Declaration were formed into two international instruments, namely International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights(ICESCR), both of which were adopted in 1966 and entered into force in 1976 respectively. Both instruments, together with The Universal Declaration of Human Rights comprising the International Bill of Rights, affirm human rights principles and set down obligations of the Member State to take responsibility to respect, protect and fulfill human rights of individuals. However, although the two Covenants are legal binding treaties and enforceable for State Members, the interpretation and enforcement of human rights obligations rely only on domestic mechanismand/or the Complaints Procedures.Henceforth, despite the universal character and more effectiveness of the international bills of human rights, the recognitions and practicesof human rights of all states are still not harmonized. This great challenge, which is also evident in the Preamble of the Universal Declaration of Human Rights, still continues and requires human rights teaching and education and progressive development, as it bears in mind:
“THIS UNIVERSL DECLRATION OF HUMNA RIGHTS…shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.”
At national level, concepts and story of human rights vary, depending on how they were translated into human rights law and constitution law during the constitutional making process. In United Kingdom, human rights are developed through the “historic observance and recognition” like Golay analyzed in his work, entitled “The Founding of the Federal Republic of Germany” that at first human rights of British subjects are not recognized under natural law, instead they only have freedoms, and those freedoms are limited by law and decided by judges, particularly in criminal law. Not until the limitations of the King’s power, firstly by Magna Carta (1215), then Petition of Rights (1628) andHabeas Corpus Act (1679), later the Bill of Rights (1689) and so on, human rights of British citizens had never seemed to be expressly recognized.
In United States of America, in contrast, human rights are recognized within the sphere of natural rights of US citizens as the sovereign power “against and limiting the exercise of the authority of government.” This is clearly shown in the proposed amendment of the constitution by James Madison in Congress in 1798, which helps shape the concept of civil rights, that:“All power is originally vested in, and consequently derived from, the people. That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety. That the people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.”
Similarly, in France, human rights of individuals are clearly observed and expressed in the Declaration of the Rights of Man and the Citizen of 1789 as the popular sovereignty, emphasizing the inherited freedom and equality of all men, in contrast with the divine right of the King, which is in turn the way to control the state power, like Article 1 of the Declaration stipulates, “Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good” and Article 2 of the Declaration guides, “The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.” However, despite human rights of French citizens are expressly affirmed by the Declaration, French continues to regard human rights as “norms” and the limitation is much vested in law or the legislative power. Only until the last century, the more positive rights had gradually replaced the human rights proclaimed in the Declaration of the Rights of Man and the Citizen of 1789.
In Germany, human rights or “basic rights” are less abstract. Prior the two World Wars, German basic rights are bestowed by the state and do not arise from a “primitive condition” prior or beyond the state. Golay points out that in German views during 1848 - 1918, individual rights cannot hold rights against the state, as the state’s limitation of power is the source of basic rights. Therefore, the citizens equally hold both rights and duties are guaranteed within the framework of the state.During such time, German views that public peace, order and security are more superior that individual freedoms. Whereas the British and American citizens can do what the law does not prohibit them to do; German citizens can do only what the law permits them to do. This perception favors the authority of the state. During Weimar Republic, problems the Republic faced comprise the Versailles treaty obligations; economic and social crisis, as well as the weak coalition of government and the broad and excessive power of the President including the power under Article 48 of Constitution that could suspend some civil and political rights. Paragraph 2 of Article 48 is read:
“If public security and order are seriously disturbed or endangered within the German Reich, the President of the Reich may take measures necessary for their restoration, intervening if need be with the assistance of the armed forces. For this purpose he may suspend for a while, in whole or in part, the fundamental rights provided in Articles 114 (Habeas Corpus), 115 (Inviolability of Residence), 117 (Correspondence Privacy), 118 (Freedom of Expression), 123 (Right to Peaceful Assembly), 124 (Right to Association) and 153 (Expropriation).”
Furthermore, the new constitution did not seem to fit rightly with the post-autocratic monarchy, when it was interpreted to be in conformity with the inherited law based on pre-democracy era. Problem further, the rights enshrined in the Constitution is rather programmatic than realistic, as they were generally not enforceable in court.Through this weakness of the Constitution and the crisis, Hitler came into power and exploited the power in order to suppress civil rights, as well as people and parties who stood against him.
After the destruction of WWII and the defeat of Nazism, German human rights or basic rights were shaped by politicians with a negative view. In contrast with the USA and French experiences, German politicians drafted the Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland) to prevent the totalitarian dictatorship. The basic rights under the new constitution are derived from human dignity and this principle reflected throughout the legal system of Germany. Furthermore, in order to prevent the exploitation of state power against basic rights, a multi-tier system of judicial review was put in place.The rights under the Basic Law has now less ambiguous and serves to settle the issues that cast doubts in the Weimar Constitution.However, the rights under the Basic Law are not absolute; they are relative and subject to be limited by law under particular circumstances provided by the Basic Law. Whether or not such limitation of rights which is suffered by individual is justified is reviewed by the Constitutional Court and the Court developed a tool using as the scale to find a rational balance, called “proportionality”, which is proven to be successful in protecting the rightsof individuals in Germany.
What do “Human Rights” mean in Thailand?
In Thailand prior the Siamese Revolution of 1932, similar to United Kingdom, the King’s subjects did not have rights; they had freedom, limited within law and order. The relationships between individuals at different classes, different statuses and the Kingdom were governed by law (‘กฎหมาย’ or ‘Kodmai’), vis-à-vis the King’s Laws. The word ‘Kodmai’ or ‘law’ in Thai is derived from the word ‘Kod’ which means ‘writing’ or ‘enacting’.However, this does not mean that the King can do whatever at his own will; the King’s sovereign power was limited by a higher law both in form of written (namely ‘Kodmai Tra Sam Duang’ or ‘Three Seals Law;) and customary lawand natural law (namely ‘Manusmṛti’/ ‘Laws of Manu’ and ‘Dasavidha-rājadhamma’ / ‘tenfold virtue of the ruler’).Only in the last century, when King Rama V Chulalongkorn liberalized people from servitude and Khana Ratsadon (‘People’s Party’) secured civilian’s rights (the Six Principles) enshrined in the Revolutionary Declaration, the notion of human rights in Thailand have just seemed tobecame closer to the concept of universal human rights. Some texts of the Declaration of Revolution in 1932 are read as follows.
“Be it, therefore, Khana Ratsadon Party set out general principles as follows:
To strongly maintain sovereignty of the country in all respects, e.g. sovereignty of political authority, sovereignty of judicial authority, sovereignty of economics;
To maintain national security. To significantly reduce harms against each other;
To bring up economic welfare of the people. The new government will provide work for all people and formulate national economic project; the government will not leave people facing hunger;
To fulfill equality and rights of people (not to let the lords’ rights greater than the people’s as it is now);
To guarantee people’s right and freedom, insofar as they are not inconsistent with any of the 4 above-mentioned principles;
To provide education for people at fullest.”
Despite being educated in France, Pridi Banomyong, a great lawyer and politician drafted the first constitution with only few key principles and with a form of parliamentary system, under constitutional monarchy. Similar the same way as UK, this allow legislature to gradually shape (or actually limit) freedom of individuals. Moreover, the most revolutionary concept of human rights in Thailand exits in the first constitution which was drafted by him, saying that the sovereign power is vested in all Siamese people, instead of the King. The King, instead, as the head of state exercises sovereign power only under the Constitution.
At the beginning King Rama VII Prajadhipok accepted the change; however, on 2 March 1944 the King abdicated from the throne due to conflicts with the government, particularly on the Constitution. The young King Rama VIII Ananda Mahidol became the new monarch. During WWII, Japan invaded Thailand and Thai government at that time led by Plaek Phibunsongkhram, a member of Khana Ratsadon allied with Japan and issued a declaration of war against United Kingdom and United States of America. Refusing the support Plaek’s policy, Pridi Banomyong was demoted to be the King’s Regent. Pridi, on the counter movement, formed Seri Thai (“Free Thai” Movement) to resist against Japan and to support the work of UK and USA. WWII ended with the loss of AXIS, including Japan and its allies; Pridi, in the name of the King, quickly issued the Announcement of Peace on 1 September 1944, nullifying the acts of government of Plaek and restoring the pre-war status quo. Interestingly, Plaek was prosecuted on the charge under the War Criminal Act B.E. 2488 (1945)(“พระราชบัญญัติอาชญากรสงครามพุทธศักราช2488”); which was a historic case. The Supreme Court of Thailand ruled that the act of the alleged person was committed on 31 December 1943, but the alleged person was charged under the War Criminal Act B.E. 2488 (1945), which was against the non-retroactivity (Ex post facto) principle; henceforth the alleged person was not guilty.This judicial review of the legislation also inspired the development of constitutional committee and constitutional court of Thailand later on. It seemed like amid the political crisis both internally and internationally, the rights and freedoms of people within Thailand started flourishing.
However, after that it was not the right turn. On 9 June 1946, King Ananda Mahidol was mysteriously found dead. At that time, Pridi was the Premier, although having no evidence that he involved with the monarch’s death, he resigned from his position and left the country for travel in several countries. On 16 December 1946 Siam joined United Nations as 55th member with the help of Pridi. While at home, in 1947, army troop staged a coup ousting Thawan Thamrongnawasawat’s government, forcing Pridi to seek refuge in Singapore and subsequently in China.
After the coup, the Democrat Party led by Khuang Aphaiwong and M.R.Seni Pramoj came into power, together with their allies forming the National Assembly to draft the Constitution of Thailand B.E. 2492 (1949) with an aim to “return power to the King”. At that time, the power of the King under the constitution, concept of constitutional monarchy and the representative democracy became hot topics. Under the Constitution of Thailand B.E. 2492 (1949), the King became unquestionably inviolable and the Head of Thai Armed Forces and was empowered to select Privy Council. Regarding the Privy Council issue, Even Seni, who was one of the prominent Royalists, opposed this idea, giving reasons that:
“…Why the government of people cannot be a council for the King?...Otherwise, the King and people will be afar and depart from democracy…If people favor their good government, but the government is in conflicting opinion with the King due to the Privy Council’s counseling, would it make people’s hearts alter from the King? I think this principle does not support the monarch.”
However, Seni could not stop this idea. The Constitution of Thailand B.E. 2492 (1949) was passed with some new ideas about the King’s rights (powers). In 1957, Democrat Party which was led by Khuang and Seni lost their seats to its opponent, Seri Managkasila Party, which was led byPlaek, together with his associates: Sarit Thanarat and Phao Sriyanond. Not soon after, in the same year, thefactionsbetween Plaek, Sarit and Phao became clear. Sarit staged a coup, ousting Plaek and Phao to live in exile. Since then, Thailand was ruled by absolute authoritarian style of government.
In 1959, Sarit instated Charter for the Administration of the Kingdom B.E. 2502 (1959). Containing briefly 20 articles, Article 17 of the Charter provided extrajudicial power to Prime Minister and supported extra-judicial killing. It said:
“During the enforcement of the present Constitution wherever the Prime Minister deems appropriate for the purpose of repressing or suppressing actions whether of internal or external origin which jeopardize the national security or the Throne or subvert or threaten law and order, the Prime Minister, by resolution of the Council of Ministers, is empowered to issue orders or take steps accordingly. Such orders or steps shall be considered legal.”
Furthermore, under Article 19 of the Charter, the judicial review was limited only the actions arisen out and under the legislation. This implied that the Prime Minister’s action was beyond the scope of judicial review. Under Sarit’s Charter, human rights of Thai people seemed to be lost.
After Sarit, Thailand had been governed by several absolute dictators. Further, Article 17 had been adopted and persisted in other subsequent Constitutions, namely Article 17 of Interim Charter B.E. 2515 (1972); Article 21 of the Constitution B.E. 2519 (1976); Article 27 of the Charter for the Administration B.E. 2520 (1977); and Article 27 of the Charter for the Administration B.E. 2534 (1991).
In 1976, in spite of being alliance with pro-democracy United States of America during Indo-China War, Thailand was challenged by international economic downturn and the communist ideology, it was clear that the absolute dictatorship and corrupted government could not handle these challenges. Social and economic inequality was growing and people cried out for more freedoms and opportunities. This led to the resistance of Thammasat students and the call for a new (more democratic) constitution.As being attentive to farmers’ problems, Thammasat students who protested for the constitution were accused of being communists and the systematic persecutions against the students were instigated. This included the lèse-majesté accusation against students.According to Puey Ungphakorn in “Violence and the Military Coup in Thailand”, the massacre began in the early morning of 6 October 1976with the first shots came from outside the university and explosives thrown in. At 5.40 am., police began to fire from the M79 launcher, causing heavy explosion. Massive attacks against students began and the students were blocked from all exits by heavily armed law enforcement officers. At 9.20 am., the violent slaughters continued and it was even more shocking that a girl who had been shot death, was sexually abused by policemen. In the evening, the killings ended, but the 1976 Thammasat Student Massacre left Thailand with deep scars; several young lives– Thailand future generationshad lost, several hundred people injured, thousands of students left their schools and imprisoned or fled away. At that time, “the right to dignity; the right to life; the right to education; the right to expression and peaceful assembly; the right to political rights,” not a single action of the state authority could reflect a slight understanding of these words.
Thailand after 1976 was still difficult. Despite a steady economic development and improved social harmonizationduring Prem Tinsulanonda in office, people’s rights were still not guaranteed. After Prem left his office, Chatichai Choonhavan was elected as Prime Minister in 1988. Numbers of infrastructure projects were implemented by Chatichai which motivated economic growth. In contrast to this big budget spending, Chatichai’s governments tried to cut military expenditures. This perhaps resulted in discontent of the army. On 23 February 1991, led by Suchinda Kraprayoon, the coup makers called National Peace-Keeping Council (NPKC) imposed Chatichai out of his office. After NPKC overthrown Chatchai’s government, Anand Panyarachun was appointed as the interim Prime Minister and subsequently the National Assembly and the Constitution Drafting Committee were formed to draft the new constitution.During Anand was in the premiership, his approaches on various challenges were proved to be meaningful. Among other things, as soon as the cabinet was appointed, he suggested NPKC that the detained Chatichai be released; furthermore, his several policies helped improve economic growth. Moreover, similar to Chatichai, Anand insisted that the public finance could not be exploited by military junta’s budget, as in one occasion, he said:
“Military might is no longer a guarantee of national security. No nation can feel secure as long as its citizens are deprived of freedom of political expression and of the opportunities for a better and more meaningful life.”
His remark was one step forward to the greater recognition of civil and political rights, as well as the social and economic rights. Most importantly, the 1997 Constitution of Thailand which was drafted during when he was effective in the office was praised as a democratic one and many human rights are explicitly acknowledged under it. It sounded like a new love was found.
However, this love was too short. After the general election in 1992, the five political parties designated Suchinda as Prime Minister. This resulted in the large scare of protests on 7 April 1992.The protests extended from days to weeks; from weeks to month. In the night of 17 May 1992, clashes between government’s forces and people occurred. On 18 May 1992, Suchinda declared state of emergency and on the same day lethal weapons were used to suppress the protestors. This atrocity resulted in 44 people dead; 670 people injured and 80 (as of 16 November 1993) missing.
In 1997, the new constitution draft was completed and the 1997 Constitution of Thailand was promulgated. During this political reform, on 29 October 1996 and on 5 September 1999, Thailand became party to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) respectively.
The 1997 Constitution of Thailand adopted the concept of human dignity, recognized human rights explicitly and formed out several constitutional institutes to help protect human rights of Thai people, as well as to control the act of government. It contained many revolutionary ideas, including the Constitutional Court of Thailand instead of Constitutional Committee in the previous constitutions and was also a model for the 2007 Constitution. This seems quite right, except only few problems, which include as follows.
Firstly, regarding human rights, the rights enshrined in the 1997 Constitution were expressly listed under Chapter 3 Rights and Duties of Thai Citizens; therefore, they arguably did not recognize the rights of foreigners or non-citizens.
Secondly, although the concepts of rights became clear and more positive, many words were still vague and created doubts, e.g. Paragraph 3 of Article 43 of the 1997 Constitution stipulates: “The provision of education by professional organizations and private sector under the supervision of the State shall be protected as provided by law.” It is not clear whether the individual can immediately claim this right or not.
Thirdly, although the constitution achieves its aim on creating political stability, Amorn Chantarasomboon, one of the notable public law lawyers and a Drafting Committee member, claimed that the constitution made an abusively strong government and the fact that the political parties can control the members of parliament through the provisions that bound them with the parties made up a “parliamentary dictatorship”.
Finally, although the 1997 Constitution is aimed on stronger checks and balances system, establishing several independent agencies like the National Human Rights Commission and the National Counter Corruption Commission and the State Audit Commission. They were also criticized as weak and not productive.
Thaksin Shinawatra became Prime Minister in 2001. His pro-poor policies became popular; some of them were proved successful and developed into a welfare system (e.g. 30-bath healthcare). However, numbers of policies of Thaksin were controversial for corruption, violence and human rights abuses. The latter cases include southern violence, Krue Se Mosque Incident, Tak Bai Incident and war on drugs campaign. According to a 2004 report of Human Rights Watch, 2,275 people were killed in the first three months of the campaign. The number was almost double the number normally killed in drug-related violence. Human Rights activists criticized the campaigned motivated extra-judicial killings.
Since war on drugs policy was widely criticized, Thaksin requested that the UN Commission on Human Rights send a special envoy to evaluate the situation, but in contrast to his move, he said in an interview,
“The United Nations is not my father. I am not worried about any UN visit to Thailand on this issue.”
In spite of some popularity loss, Thaksin was able to manage to stay throughout his 4-year term.In 2005 election, Thaksin and his party won a landslide victory sweeping 374 out of 500 seats in Parliament. It is the highest turnout in Thai history. However, on the other side, his opponents and dissatisfied peopleclaimed that he caused a parliamentary dictatorship.
Now, led by Chamlong and Sondhi, People's Alliance for Democracy (PAD) formed up with tens of thousands protesters, consisting of both working-class and middle-class Bangkokians, academics and students, occupying the area around Government House in Bangkok, demanded Thaksin to resign. On 24 February 2006, Thaksin dissolved Parliament, scheduling for a general election on 2 April. It was a wildly boycotted election. Again, Thaksin won with 462 seats in Parliament, but requiring filling an uncontested seat by the 1997 Constitution. By-elections were needed for 40 candidates who failed to win the minimum 20%. PAD continued to protest, so did Democrat Party to boycott the elections, but the remaining by-elections were suspended by the Constitution Court until case on the annulment of April election was determined.
On 8 May 2006, the Constitutional Court ruled that the April election was nullified, on the reason of the unusual positioning of voting booths. The new general election was rescheduled in October, but it was cancelled when the coup organized on 19 September 2006 under leadership of Gen. Sonthi Boonyaratglin.. The coup alleged Thaksin regime for lèse majesté, corruption, interference with state agencies, and creation of social divisions, which justified their action. Thaksin later arrived in Britain, where he had family. Thaksin now lived in exile.
During the 2006 Coup, along with the sacking of Thaksin regime and prosecution on corruption charges against him, Martial law was imposed, the 2006Interim Charter was promulgated and the interim Prime Minister, retired General Surayud Chulanont was appointed, new constitution was drafted and new election was scheduled on 23 December 2007. On 30 May 2007, the army-appointed Constitutional Court ruled that Thai Rak Thai party violated election law and banned the Party executives from contesting in elections for 5 years.The 2007 Constitution draft with more claimable rights was completed and a national referendum was organized. 56.69 % of voters voted in favor, 41.37% against, and 1.94% invalid. After the affix of the King’s seal, the 2007 Constitution was now in force.
The 2007 Constitution, particularly on human rights contained several improvements. One critical enhancement is Article 29 of the Constitution which outlines the rationality of human rights limits – the ‘proportionality’ principle that is influenced by German Public Law. Article 29 of the Constitution stipulates:
“The restriction of such rights and liberties as recognized by the Constitution shall not be imposed on a person except by virtue of provisions of the law specifically enacted for the purpose determined by this Constitution and only to the extent of necessity and provided that it shall not affect the essential substance of such rights and liberties.”
The elements of “only to the extent of necessity” and “shall not affect the essential substance of such rights and liberties” seem to match two of the three elements of German Proportionality Test, namely: “necessity” (it needs to use such mean) and “proportionality stricto sensu” (balancing result).
This means that after 2007, Thailand foresees that human rights are not all vague, soft, nor absolute. Yet, there are some kinds of rights that are relative and can be claimed by law. Constitution as the supreme law endows both rights and responsibilities and tries to balance them. While, the individuals have the human rights provided by the Constitution and the State has the responsibility to respect, protect, and fulfill them, according to the law. On the other hands, the individuals as well have the responsibilities to respect human rights of others and the common goods too. Then, it is much possible that the individual rights will conflict with other person’s rights or the common goods. It is, therefore, important to be as clear as possible and the interpretation shall be rational as much as possible.
Among these great things, there were some disputable matters, which include the refusal of proposal of National Human Rights Commission on human rights clauses to be enshrined in the new constitution; the broad discretionary power of junta to select and amend one of the previous charters to promulgate, if the new constitution could not be completed within the deadline set by junta.
Thailand’s human rights after 2006 Coup was even more complex and intense. Despite clearer concept of rights enshrined in the new constitution and less ambiguous text, favoring better interpretation to safeguard rights and constitutional values, a new round of problems came out. This time, it was the conflicts of human rights (anti-Thaksin group called “People's Alliance for Democracy” – “PAD” against pro-Thaksin group called “National United Front of Democracy Against Dictatorship” – “UDD”) and constitutional institutes (legislature against constitutional court).
The general election in 2007 turned out that Samak Sundaravej, People Power Party (PPP), who allied with Thaksin, won the seats in parliament and formed up a coalition government on 29 January 2008. On 25 May 2008, PAD began the protests demanding Samak’s resignation. On 9 September 2008, the Constitutional Court ruled out that Samak’s premiership was terminated on the fact that he ran a cooking show and got paid while he was in premiership which deemed a conflict of interests. On 17 September 2008, Somchai Wongsuwat, Thaksin’s brother-in-law became Prime Minister. On 6 October 2008, PAD blocked a parliament session, in which Somchai required to seek approval on his policies. Somchai was forced to cross a fence to exit, while being bordered by the protestors. Polices dispersed protestors with tear gas, resulting in clashes and leaving 2 persons dead; over 300 injured including 20 polices. On 21 October 2008, the Supreme Court ruled that Thaksin was guilty of conflict of interests in his wife’s land purchase case. On 25 November 2008, PAD blocked and disrupted Don Muang and Suvarnabhumi Airports. 2 December 2008, the Constitutional Court ruled that PPP and coalition parties are dissolved and their executives were banned from political activities for violating election law. Somchai shortly resigned from the office. This paved way for Democrat Party and ended PAD protests.
On 15 December 2008, Abhisit Vejjajiva, the Democrat Party leader, was elected and became Prime Minister. In March 2009, Thaksin through vdo broadcasting accused Prem Tinsulanonda, Privy Council President that he conspired the 2006 coup. In April 2009, UDD rallied at the Government House and demanded that Abhisit resigned from the post. During 14th ASEAN Summit in April 2009, UDD rallied to the event and stormed into the site, causing the Summit to be cancelled. In April, around Songkran Days, UDD attempted to threaten to Abhisit, but he managed to escape safely. On 13 April 2009, more protestors gathered into Bangkok. UDD used cars, buses and sometimes LPG tankers to seize several sites in Bangkok. Army started using live round ammunition, together with tear gas to disperse the protests, injuring 70 people. In that night, UDD clashed with the locals in the protest areas. On 14 April 2009, arrest warrants issued for Thaksin along with UDD leaders. The protestor’s leaders surrendered, ending the protest.
In 2010, UDD was back on Bangkok streets again, starting from March to May. They demanded for the dissolution of parliament. The protestors gathered in Phan Fah Bridged, then expanded to Ratchaprasong Shopping area. On 10 April, military tried to crack down the protests, but it was unsuccessful; furthermore caused 24 deaths. On 13 May 2010, Khattiya Sawasdiphol, security advisor of the protestors was shot death, while he gave in interview to foreign news reporters. During 14 – 19 May 2010, violence escalated, while army tried to end the protests. UDD allegedly set fire to Stock Exchange and department stores, before army could control the sites. This incident resulted in almost a hundred people dead and thousands of people injured. Tension decreased when Abhisit set date for general election on 3 July 2011.
The result of the general election on 3 July 2011 turned out thai Yingluck Shinawatra, sister of Thaksin from Pheu Thai Party won the majority and formed a government. Now, the picture is clear that Thaksin is still popular in the North, Northeast and Central parts of Thailand.
Almost throughout her tenure, Yingluck faced several criticisms, including the management of the 2011 floods, but she continued to thrive on. Only until October 2013, the problem had just revealed, when the house of representatives passed a blanket amnesty bill, which would have pardons people and politicians from various charges since 2004, including Thaksin, Suthep and Abhisit. Suthep walked off the lower house and led the protestors since almost the beginning. The amnesty bill was widely criticized by all side, including pro-government UDD who feared that the pardon of Suthep and Abhisit would make them free from accountability on the deaths of UDD in 2010 unrest. Additionally, together with the corruption scandal on rice pledging program, Yingluck lost popularity rapidly in the central Bangkok.
Anti-government protestors demanded Yingluck to resign from the post. On 8 December 2013, Yingluck dissolved parliament and fixed the general election date on 2 February 2014. However, Suthep and the protestors still did not content. On 2 February 2014, violent clashes between the protestors and the voters occurred, making the votes incomplete. Subsequently, the Constitutional Court ruled that the voting was invalid. The protests were protracted. In May 2014, the protests were subject to violence and attacked. On 7 May 2014, Yingluck was ruled by Constitutional Court over the transfer of senior security officer in 2011 that created doubts on legality. The cabinets elected Niwatthumrong Boonsongpaisan to be acting PM. The army led by Prayuth Chan-o-cha encouraged for mutual dialogues; however both sides could not reach the mutual agreement. On 20 May 2014, Thai coup d'état was back to Thai society again.
Prayuth’s 2014 Interim Charter is not something new, but since Thailand was free from the military dictators, this is the first time that the “extrajudicial power” gets back to the constitution. Article 44 of the 2014 Interim Charter says:
“For the sake of the reforms in any field, the promotion of love and harmony amongst the people in the nation, or the prevention, abatement or suppression of any act detrimental to national order or security, royal throne, national economy or public administration, whether the act occurs inside or outside the Kingdom, the Leader of the National Council for Peace and Order, with the approval of the National Council for Peace and Order, may issue any order or direct any action to be done or not to be done, irrespective of whether the order or action would produce legislative, executive or judicial effect. Those orders or actions, as well as their observance, shall be deemed lawful, constitutional and final. After the exercise of such power, the President of the National Legislative Assembly and the Prime Minister shall be informed thereof without delay.”
This is in contrast with Article 4 of the Interim Charter which recognizes and guarantees human rights that are derived from customary practice of government under the democratic regime and international obligations which bound Thailand. Article 4 of the Interim Charter says:
Subject to the provisions of this Constitution, human dignity, rights, freedoms and equality of all Thais, which have been protected under the customary practices of the government of Thailand under the democratic regime with the King as Head of State and under existing international obligations of Thailand, shall remain protected under this Constitution.
More interestingly, the text in Article 44 is in conflict with Article 4 as accordingto the concepts of rights, the government in any form has a limited power and has the responsibility to respect, protect and fulfill human rights of a person, this include having an internal measure, including judicial review, to render effective remedy, whereas a human rights is violated in order to guarantee human rights like ICCPR, Article 2 says:
“1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. …
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.”
So, since the 1997 Constitution marked the rise of constitutional rights, we have seen the development of human rights that equipped people with power to challenge the authority exercised by state officers. Numbers of human rights are violated during Thaksin regime, but the more important thing is a system or a measure that can effective protect and guarantee the human rights of a person, including judicial review and effective remedies.
After Thaksin was sacked by the coup in 1996, we have seen more conflicts of the power of the constitutional organs, namely but not limited to the legislature and the constitutional court at the one hand and the clashes of rights of PAD, UDD and other locals at the other. Despite 2007 Constitution introduced use the proportionality principle, but we had never seen a Constitutional Court’s decision that reflects it, while in Germany the principle is derived from the general principle of law, influenced by juristic thoughts of notable Public Lawyers and brought into life by the Constitutional Court of Germany. During PAD-UDD, we had seen how human rights were exploited by both sides, particularly the right to public assembly. Without a realization of how such rights are limited and what measures to balance such rights with other individual rights and public interest are very dangerous, in fact have led Thailand into further social divides.
The 2014 coup is the most awkward thing, taking into account that AEC is underway and Myanmar and our neighbors are becoming more democratic. Then again, it may be because of one great mistake of Yingluck that is failed to protect the human rights of her supporters - UDD, the right to life of the deaths during the 2010 unrest and the right to property of other persons who suffered from the protests, triggering the 6-month coup in Bangkok, allowing Suthep to exploit human rights of the deaths and others, shutting down Thailand without no rear exit.
Human rights are born out from natural law and intertwine with justice. In each country, human rights, citizen rights, basic rights are developed differently. However, in modern state and the constitutional moments, human rights became clear and positive in character. At this process, we now clearly see that many human rights are not absolute, they are relative, packed with responsibilities of individual and subject to limitations and restrictions in order to protect human rights of others and public interests.
In Thailand, Pridi and Seni have the same vision that UK parliamentary system and constitutional monarchy concepts fit in Thai societies to frame out human rights limits. Yet, the parliaments had been crushed by the coup and the authoritarian dictators. During Sarit and other military governments, human rights of Thailand are nearly extinct. During this gloom, there is Anand, a civilian Prime Minister that could challenge the human rights threats with the universally accepted observance of human rights. After Black May Incident, which makes military almost withdraw from Thai politics, a democratic constitution – 1997 Constitution is born. The 1997 Constitution contains several revolutionary things, including concept of human dignity and the relativity character of human rights, yet the texts are still not clear and create doubts; questions arise whether the rights of individual can be claimed immediately or not. It also lacks of justification how the rights are limited. After 1997, we have seen clashes of constitutional powers and human rights and exploitation of human rights by politicians. Then, the 2014 Constitution introduces us the principle of proportionality that is used to find a balance between individual rights at the one hand and the state power or other person’s rights and public interest at the other. Yet, it is not evident in the decisions of the Constitutional Court. Furthermore, we see the real reason that Yingluck loses her power, not because of the coup, but her failure to protect human rights of her supporters and other people as the whole. And finally, we see how Prayuth imports extrajudicial power in disguise of human rights under customary law and international obligations. They cannot complement with each other. Like human rights and injustice; like oil and water cannot harmonize.
As I saw systematic uses of forces by the junta against human rights of people, how constitutional organs and academics who serve junta in the Constitutional Drafting Assembly were silent or distorted this matter, I am not happy.
We shall be happy in the just society, where human rights whether or not enshrined in the Constitution are fully respected. But, I am not sure what kind of society we are now living. On this occasion, let us together observe how human rights are developed further in Thailand and beyond.
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ประจักษ์ ก้องกีรติ. และแล้วความเคลื่อนไหวก็ปรากฎ...การเมืองวัฒนธรรมของนักศึกษาและปัญญาชนก่อน 14 ตุลา. กรุงเทพฯ: สำนักพิมพ์มหาวิทยาลัยธรรมศาสตร์, 2548.
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