On 7 August 2016, Thailand held a referendum to decide upon the country’s new constitution, as drafted by the military. Preliminary results indicate that 62 percent voted in favour of the constitution, while a majority also agreed that a military nominated Senate should be allowed to select the Prime Minister together with the House of Representatives. At the same time, it must be noted that voter turnout was only around 50 percent, much lower than in previous general elections.
Considering the text of the draft constitution as well as the referendum process, the Asian Human Rights Commission (AHRC) is concerned by the permanent role in Thai politics and in the formation of a Government granted to the military by the constitution. This is particularly worrying given the military’s suppression of fundamental human rights since the coup.
The new constitution allows the National Council for Peace and Order (NCPO), the junta’s ruling body, to maintain its power. According to Section 265, the NCPO will continue to perform its duties until a new government is established following the first general election. During the performance of duties, General Prayuth Chan-ocha will continue to have the duties and powers as provided in the Constitution of the Kingdom of Thailand (Interim) B.E. 2557 under Section 44. As the junta leader and Prime Minister, General Prayuth Chan-ocha has absolute power to give any order deemed necessary to “strengthen public unity and harmony,” or to prevent any act that undermines public peace. As a result, the status of the order issued under Article 44 is equal to an act passed by the legislature. (For more information, please follow this link (http://www.humanrights.asia/news/ahrc-news/AHRC-STM-100-2016)
Additionally, according to Section 269, the Senate will consist of 250 members to be appointed by the King upon the advice of the NCPO, for at least five years of the new government. Section 270 further states that the senators will have the duties and powers to follow up, recommend, and accelerate the National Reform for the purpose of achieving the goals as prescribed in Chapter 16 of the Constitution, and the formulation and implementation of a national strategy. In other words, the senators will be used by the NCPO to control the new government.
Since the coup in May 2014, a large number of NCPO orders and announcements have been imposed, all of which have greatly restricted the fundamental rights of activists, political opponents and ordinary citizens in Thailand. Section 279 of the new Constitution makes these orders lawful; not only does it provide grave impunity for authorities violating people’s rights, but it also justifies human rights violations committed by the NCPO:
All announcements, orders and acts, including the performance of the National Council for Peace and Order or of the Head of the National Council for Peace and Order already in force prior to the date of promulgation of this Constitution or will come into force in accordance with Section 265 Paragraph Two, irrespective of their constitutional, legislative, executive or judicial force, shall be considered constitutional and lawful and shall continue to be in force under this Constitution…
While the new Constitution clearly undermines democracy and human rights, the process of deciding upon the Constitution was also flawed. Prior to the referendum, the current government suppressed all objections and opposition to the draft charter, whether by pro-democracy activists, academics, media, or ordinary Thai citizens, through criminal sanction, threats and intimidation. Many activists who attempted to campaign for “Vote No” were stopped and then prosecuted by the authorities, under the Constitutional Referendum’s Section 61 paragraph Two, Article 116 of Criminal Code (Sedition), and the NCPO order no.3/2015, which bans political gatherings of five or more persons in political activity. Campaigning for the charter was therefore mostly conducted by government officers, primary teachers, local administrators, village heads, and territorial defence students.
As of 5 August 2016, 195 people have been prosecuted for publicly opposing the draft constitution. One day before the referendum, Mr. Jatupat Boonphatthararaksa and Mr. Wasin Prommanee were brought to the Phu Khiao District Police Station, Chaiyaphum province, after distributing leaflets on the Constitution to the general public, and charged with violating the Constitutional Referendum Act’s Section 61 and other military orders. Jatupat has been on a hunger strike since August 6 to affirm his innocence (http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-099-2016).
It is pertinent to recall that the NCPO took power from a civilian government on 22 May 2014, in order to “restore peace to the people from all sides without delay”. The NCPO’s subsequent actions have been contradictory however. In fact, the strict implementation of military orders curtailing fundamental rights has created a very restrictive environment since the coup. The AHRC thus urges the Thai government to drop all charges under the Constitutional Referendum Act and relevant military orders, and instead to uphold Thailand’s human rights obligations regarding the freedom of expression and opinion. In addition, as a result of the referendum, the AHRC calls on the Thai government to immediately restore rule of law, democracy, and human rights in the country.
