On September 27 the Bangkok Post newspaper published an article pointing to the likely shape of Thailand’s new draft interim constitution in the wake of the September 19 military coup. The interim constitution is expected to grant amnesty to the coup leaders. It will set up a 250-member legislature with limited powers, and a 2000-member national assembly that will select a group of 200 persons out of whom 100 will be chosen by a remodelled junta. This group will in turn name 35 persons, out of which ten will be appointed by the junta, to draft the new permanent constitution under its guidance. The interim charter will also arrange for new judges to the Constitutional Court, and somehow simultaneously guarantee the courts’ independence.
There are likely to be some differences between what the Post has reported and what is finally drafted, but the general outline is becoming clearer, and it is unsurprising. As the Asian Human Rights Commission has said from the start, the junta is determined to stay on in one form or another. This intention, and the interim constitution that will be required for that purpose, raise a lot more problems which the regime and its agents will struggle to address, as did the last dictatorship in 1991. They include the following.
How can the generals claim amnesty and Thailand meet its international obligations? The junta has said that it will honour all commitments to United Nations treaties, but UN experts have in recent times made plain that the granting of immunity through a blanket amnesty is contrary to international law. Domestic courts also are increasingly overturning such amnesties later. The very essence of article 2 of the International Covenant on Civil and Political Rights, to which Thailand is a party, is the even application of law and ending of sweeping impunity for criminal offences. Thailand has already been harshly criticised for shielding soldiers and police who commit human rights violations while operating under emergency regulations. Any amnesty to the junta will fly in the face of the country’s obligations and do nothing to abate fears that army officers and police in Thailand are above the law. But as one of the coup group has already admitted that his is an illegal government, what alternative is there?
How will the new legislature and national assemblies be appointed? Like its predecessors, the regime is issuing one order after another abolishing, establishing, removing and assigning government bodies and their personnel at will. Most recently, appointees to new advisory panels said that they were not even informed before the appointments were “ordered” on national television. How are legislators and national assembly representatives to be selected? Will they be told beforehand? As in previous years, all these rearrangements are expected to be rubberstamped into law with the passing of the new constitution. So at what point does this process become “democratic”?
What will be the role of political parties? Political process depends upon party involvement. Is the business of forming an assembly to draft the new permanent constitution a matter for some persons handpicked by the military–and other persons handpicked by the handpicked persons–or is it a matter for a parliament to decide? If political parties are permitted to participate at some point, what will be their role? Their entry into any discussions will bring with it the usual conflicts and debates that are inherent in the business of party politics, which will not be welcomed by the junta. But if parties are excluded or severely restricted, then what sort of political process will follow?
How can the junta or its agents assign judges and assert that the judiciary will be independent at the same time? A cornerstone of any independent judiciary is the guarantee that the executive cannot appoint, dismiss or transfer judges. The capacity of courts to reach reasoned and legally-balanced decisions depends upon this separation of power. Where the executive removes and replaces judges, it has defeated the notion of an independent judiciary. That is why the 1997 Constitution of Thailand stipulated that Constitutional Court judges be nominated by an expert committee, chosen through secret ballot by the senate and approved by the king before they could take their seats. Army officers were not to be involved.
Writing in 1993, Professor Ted McDorman of the University of Victoria in Canada observed that constitutions in Thailand have been seen as nominal rather than normative. That is, they have served to validate the power of the ruling group, rather than lay down ground rules that everyone must obey. “Most political commentators have accepted that the role of a constitution in Thailand has been to legitimate the authority exercised by the then-dominant political forces,” McDorman said. This is one reason why the country has had a new constitution virtually every time that power has changed hands.
The 1997 Constitution both validated the power of the people of Thailand as the new ruling group, and also began the long process of laying down some ground rules. It wrested a measure of authority away from conventional forces–the army and established elite–and attempted to place it in the hands of the public through autonomous agencies and new laws. Unfortunately, inadequate safeguards meant that it struggled to protect its institutions and stay its course in the face of the unrestrained aspirations of an elected tyrant and his supporters. But to deal with such problems under the terms laid down by the law is the challenge of a constitutional system of government. If the law does not work, it must be changed. If it is not changed willingly, people are entitled to engage in peaceful protest. Over the years, challenges are met, obstacles are overcome and genuine constitutionalism takes root.
It was this that the army could not stomach. Genuine constitutionalism means ground rules that the military too must obey. Genuine constitutionalism means that even army officers answer to the law. It means that ultimately the army is subordinate to other parts of government. For the generals, the former prime minister’s real offence was not that he was corrupt; they could tolerate that. It was that he behaved as though superior to the military.
The junta is not the solution to Thailand’s problems. It is the embodiment of those problems. While it is talking gently of reform, it is signalling a radical reversal. It is setting itself on the path to writing a new constitution by proxy. It has no recourse now but to attempt to push Thailand back to a pre-1997 model of government. There is no way forward for the junta but to take the country backward. For this reason it must be opposed. The Asian Human Rights Commission will continue to do so, at every opportunity.
