On September 21 the Royal Thai Consulate General in Hong Kong wrote to the Asian Human Rights Commission. In the letter, the consul general said that despite the September 19 military coup “the courts… function as normal, with the exception of the Constitutional Court”. The Constitutional Court has been suspended in the absence of the 1997 Constitution. In an attached statement, the consulate added that the coup group had promised to “uphold the principles of the UN and other international organizations and comply with obligations under international treaties and agreements”.
The notion that courts under a military junta “function as normal” is of course ridiculous. So too is the notion that obligations under international treaties and agreements can be upheld.
A military coup necessarily displaces the foundations upon which the rule of law operates. Where an army unilaterally takes power by force and abrogates the national constitution, it is acting illegally to undermine everything upon which the courts stand. In an interview with The Times newspaper, a senior spokesman for the junta has admitted as much. “[The coup] is against the law… But sometimes, to break the deadlock, someone has to do something,” Major General Thawip Netniyom is reported as having said.
That “sometimes someone has to do something” is a neat phrase, because it can be used to justify anything. When the “someone” is an army clique and the “something” is a coup, a range of generic justifications must follow: the administration was corrupt; the nation was at risk; the people lacked unity. Hence the purported solutions: remove the administration; rescue the nation; reimpose unity.
What about legality? Regardless of whether or not a shot is fired, upon what authority does a junta order the creation of new state bodies, and the dissolution or recomposition of others? Upon what authority does it order the transfer, promotion or demotion of police and military officers and bureaucrats? Upon what authority does it nominate a new prime minister or propose a timetable for elections?
Certainly, legal systems are complicated, imperfect and time-consuming. That is because the management of a modern state, with many competing interests and demands, is complicated, imperfect and time-consuming. To bypass all of this because “sometimes someone has to do something” is not to solve any problems. It is to throw justice into the rubbish bin. And with it go the principles upon which human rights are protected, international laws written and courts established. This is not stability; it is not rule of law: it is its antithesis. It is dictatorship.
Thailand’s national laws and courts have since September 19 been thrown into limbo. Whereas in the months before the coup the superior courts were engaged in a tremendous effort to resolve the national impasse through application of law, their work has been rendered irrelevant. Whereas the lower courts had in recent times begun to directly invoke the 1997 Constitution, they are now bereft of any basis for assertion of fundamental rights.
Thailand’s responsibilities to international laws have also ceased to have anything other than formal validity. The commitment to international law by the military junta is relevant only in terms of its attempts to obtain some international respectability. In practical terms, it is meaningless.
The struggle for human rights and democracy in Thailand has been set back by decades. There is no avoiding this uncomfortable fact. Nor is there any possibility of reversing it. It cannot be denied through light-hearted observations that everything may turn out alright. The disastrous consequences of this military takeover must be openly recognised, and efforts begun to address them.
The Asian Human Rights Commission calls upon all rights groups and concerned persons and agencies in Thailand and abroad to review every aspect of their work in the country. Now is the time to ask big questions of ourselves and others. We cannot be reduced to small talk. How can the courts in Thailand “function as normal” today? How can the country “comply with obligations under international treaties and agreements”? And how can anyone with an agenda for human rights and the rule of law in Thailand deny that perhaps in another five, ten or 15 years an army general may not again in a matter of hours tear up the constitution and appoint his own government on the pretext that “someone had to do something”? These are the questions that matter now. There is no more business as usual in Thailand.
