There has been a lot of misunderstanding about the September 19 coup in Thailand. Many foreign correspondents, tourist bloggers and other casual observers have written that the local market is still busy, people are smiling politely as usual, and life seems to be going on like normal. The coup has been described as “courteous” and even “fun”; people are “cheery”. So what is all the fuss?
Better-informed persons have understood that the meaning of the coup is to be found in the destruction of things not physically located in a marketplace, or for that matter, under the tracks of tanks parked outside parliament. Its meaning lies among scattered laws, institutions and expectations, which having taken years to assemble will not be easily put back together again. Above all, it lies among the broken pieces of the 1997 Constitution of Thailand, and everything it represented.
The 1997 Constitution was not “just another constitution”. For this reason, the 2006 coup is not “just another coup”, as some commentators and protagonists would have us believe.
The 1997 Constitution was the first to be written by the people of Thailand for the people of Thailand. The assembly that wrote the draft was itself elected by popular vote, not handpicked by some general. Hundreds, if not thousands of independent civic groups were organised with the purpose of raising particular interests, widening public involvement and monitoring progress after the charter was enacted. In 2001 Dr Thanet Aphornsuvan of Thammasat University wrote that
“The new Constitution reflected the crystallization of 67 years of Thai democracy. In this sense, the promulgation of the latest constitution was not simply another amendment to the previous constitutions, but it was a political reform that involved the majority of the people from the very beginning of its drafting. The whole process of constitution writing was also unprecedented in the history of modern Thai politics. Unlike most of the previous constitutions that came into being because those in power needed legitimacy, the Constitution of 1997 was initiated and called for by the citizens who wanted a true and democratic regime transplanted on to Thai soil.”
Among other things, the 1997 Constitution made significant changes to the management of criminal justice in Thailand. For the first time, the rule of law truly became a part of the supreme law. On this, Dr Kittipong Kittayarak, a former director general of the Department of Probation has written that
“The Constitution has put great emphasis on overhauling the criminal justice system. The timing of the drafting of the Constitution also coincided with public sentiments for reform, triggered by public dissatisfaction of criminal justice as a result of the wide media coverage on the abuse of powers by criminal justice officials, the infringement of human rights, the long and cumbersome criminal process without adequate check[s] and balance[s], etc. The public also learned of conflicts in the judiciary and other judicial organs which at times were spread out and, thereby, deteriorated public faith in the justice system. With such [a] background, the members of the Constitutional Drafting Assembly used the occasion to introduce a major overhaul of Thai criminal justice.”
Together with the many complicated institutional changes that followed came psychological changes: among judges, lawyers and the public. The higher courts in 2006 for the first time took a lead role in deciding issues of national importance. Courts at all levels were increasingly willing to invoke constitutional rights directly, and consider arguments on human rights principles. The notion of public interest litigation was becoming known and accepted among legal practitioners. People were gaining confidence in the capacity of the courts to address the many problems facing their society. The judiciary, historically by far the weakest leg of the state in Thailand, was at last beginning to flex some muscle. All of this has now been abruptly halted.
The 1997 Constitution was also of importance to many far beyond Thailand. It set an example to a region plagued by authoritarianism and the un-rule of law. As Professor Andrew Harding from the University of London has written, “Thai public law reform should be regarded as being of great significance in the context of the development of the new constitutionalism in Asia and the developing world generally.”
The Asian Human Rights Commission among many others has indeed regarded the 1997 Constitution as being of great significance. This constitution held out the prospect for affirmation of the rule of law and human rights through peaceful public involvement in a way that has not been replicated in any other country of Southeast and South Asia. It was not just a constitution for Thailand; it was a constitution for Asia.
The 1997 Constitution was flawed, and it was attacked. Thailand was not transformed overnight, and in fact it experienced many setbacks in the five years of government by Thaksin Shinawatra. But his government’s concerted assaults on constitutional institutions and principles can in no way be compared to what was done by the Thai military in a matter of hours on September 19.
From many years of hard work, the Asian Human Rights Commission can state unequivocally that nothing good ever comes from a military coup. People in Burma understand this, as do people in Pakistan. People in the Philippines, Indonesia, Cambodia, Korea and Bangladesh have their own stories to tell. Nepal is just now emerging from the tragedy of a military takeover under the guise of a “royal coup”. And past generations of people in Thailand have known it too. The consequences of military dictators in these countries are still being felt today, regardless of whether or not the army has stayed in power. They are found in corrupt and irrational policing; widespread extrajudicial killing, torture and forced disappearance; weakened judiciaries; confusion about the law and its purpose; and authoritarian institutions with democratic facades.
Military coups are not fun, polite or cheerful. They are contrary to the values of justice and human rights. They are contrary to the interests of the public. They are in every sense offensive to international law and the norms upon which civilised societies in the 21st century are being built.
In the words of Professor Harding, the dangers and consequences of the 1997 Constitution of Thailand failing were “somewhat awesome to contemplate”. Those dangers and consequences will now be felt, and like it or not, they must be contemplated–and fought against. They must be fought against not only for Thailand, but for the whole of Asia. This is a fight that cannot and will not be left to the people of Thailand alone. For the Asian Human Rights Commission, it is our fight too.
