Last week two lower courts in southern Thailand made important decisions with wide implications for human rights and constitutional law in Thailand. On May 23 the southern Trang Provincial Court ruled that by destroying his April ballot paper in protest at the incumbent government, Tossaporn Kanchanapamornpat had not broken the election law. It said that as the higher courts had invalidated the vote, Tossaporn was exercising his right under article 65 of the 1997 Constitution “to resist peacefully any act committed for the acquisition of the power to rule the country by a means which is not in accordance with the modes provided in this Constitution”. On the same day, the Songkhla Provincial Court gave the same ruling in a case against Dr Kriangsak Liewjanpatana and six others accused of the same offence. In so doing, the courts effectively concluded that this article under the constitution could be directly enforced, without any mediating law, over and above the provisions of an ordinary domestic law.
Although the Constitution of Thailand is the country’s supreme law, the courts have been reluctant to invoke its provisions directly. Its article 6 holds that, “The provisions of any law, rule or regulation which are contrary to or inconsistent with this Constitution shall be unenforceable.” However, in reality the courts have awaited the enactment and revision of domestic law in line with the constitution, and to some extent, guidance from the higher judiciary, before acting on its provisions. As a consequence, there are still many domestic laws being enforced in Thailand today that are contrary to constitutional law. There are also many constitutional provisions for which no equivalent legislation has been written, making it difficult for complainants to obtain redress for want of legal and institutional avenues.
In recent years, the Thai courts have sought to avoid the implications of the many contradictions and gaps found between the constitution and subordinate laws, as more and more defendants and litigants alike have invoked their constitutional rights in opposition to particular statutes and regulations, or the lack thereof. This has caused confusion and discomfort, as article 28 of the constitution clearly states that, “A person whose rights and liberties recognised by this Constitution are violated can invoke the provisions of this Constitution to bring a lawsuit or to defend himself or herself in the court.” In practice, the courts have been reluctant to recognise appeals direct to the constitution, and have rejected cases argued on constitutional grounds through narrow interpretations of existing law and criminal procedure.
In February, for instance, the Angthong Provincial Court convicted Sathien Janthorn of setting up a community radio station illegally. The 1955 law under which he was convicted itself appears to violate articles 39 and 40 under the new constitution, and Sathien based his defence upon his constitutional rights to broadcast. However, the court decision had the effect of giving the 50-year-old statute precedence over the constitution.
In January, the Criminal Court in Bangkok sentenced one out of five police officers charged in connection with the abduction and forced disappearance of human rights lawyer Somchai Neelaphaijit to three years in prison for coercion. It has been established that the police abducted and probably murdered Somchai, and it is widely accepted that the five defendants in the original criminal case were all involved. Article 31 of the constitution protects “the right and liberty in… life and person”, and stipulates that, “No arrest, detention or search of person or act affecting the right and liberty under paragraph one shall not be made except by virtue of the law.” However, for want of a specific law on abduction and forced disappearance by state officers, the constitution could not be effected. Victims of torture defending themselves against fabricated charges have faced similar difficulties. Although article 31 also prohibits torture and cruel or inhumane punishment, again the absence of an enacting law places this constitutional right beyond the reach of the ordinary person.
The judiciary has long been the weakest leg of the Thai state. Historically, the role of the courts has been limited to enforcing legislation and cooperating with the executive with a view to obtaining a stable society. The interpretative role afforded the courts in other jurisdictions, and their importance in counterbalancing the authority of the executive and legislature, had not until recently been recognised in Thailand. As a consequence, powerful politicians and businesspeople together with elite military officers, corrupt police and bureaucrats for decades controlled national affairs uninterrupted. The end of military dictatorship in 1992 and progressive constitution in 1997 opened the door for the courts to play a new role in shaping the country’s future, particularly with the introduction of two new superior courts. However, it has taken some years for the new possibilities to be recognised and seized.
By cancelling the April general election on grounds of illegality, the Thai judiciary has moved firmly into a new era, with tremendous repercussions for the rule of law and human rights. The courts’ recognition that popular aspirations for full enjoyment of democratic rights had been thwarted in April is an unparalleled and unmistakable assertion of judicial authority from which there is no turning back. The decisions by the lower courts in Trang and Songkhla, while flowing directly from the ruling of the higher judiciary on the election, are also strong affirmations of the authority vested in all courts of justice in Thailand to uphold the rights of citizens under the constitution. In recent days the Criminal Court in Bangkok too has resolved to take up criminal cases against members of the Election Commission without delay, again demonstrating a newfound determination to become actively involved in solving problems that are having an effect on the entire country.
The Asian Human Rights Commission calls upon all judges, lawyers, journalists and other concerned persons to study these cases closely and actively engage in the growing discussion on the role of all courts in building a body of constitutional jurisprudence in Thailand. The effects of the judgments in Trang and Songkhla should be felt not only in the remaining cases of ballot paper protests, but in all hearings and appeals pending before the courts where constitutional rights have been directly invoked. And in view of the growing number of cases before the courts where citizens are seeking remedies from–or defending themselves against–state agencies on constitutional grounds, the Asian Human Rights Commission renews its call for an avenue for direct complaints to the country’s higher judiciary on this basis.
The debate on the authority of the Thai courts in enforcing constitutional rights is now on in earnest: if as a consequence the means to enforce these rights can be institutionalised, then a foundation will be laid for the judiciary to have an ongoing and active role in ensuring that they are found not only on paper but also in reality. In the meantime, the movement of the courts towards quickly taking up and addressing cases in the public interest is itself very welcome. It is in this way that a judiciary slowly emerges as a protector of basic rights, and as this trend continues in Thailand it can be expected to have positive effects for everyone in the country.
