The Criminal Court in Bangkok on January 12 found that missing Thai human rights lawyer Somchai Neelaphaijit had been abducted and that a police officer was among a group of persons, all suspected to be police, who were responsible. The prime minister subsequently said that Somchai has been murdered, and insisted that the Department of Special Investigation under the Justice Ministry, which is spearheading further inquiries, would lodge further charges by the end of February. Thus it is now on record that state officers abducted and killed Somchai and disposed of his body, although so far only one has been identified by the court as having had a role in the incident.
At this point we must ask some very serious questions about the Constitution of Thailand. The 1997 Constitution has been lauded as progressive, and in line with democratic ideals. However, the test of a constitution is its effect on the day-to-day affairs of a country and the lives of its people. It must be judged on its capacity to right the wrongs that people suffer. Victims of abuses should be able to resort to it directly. The constitution must also provide the means for constant improvement of other laws to offer redress, based upon the actual experiences of the country and its people. Above all else, the investigation of state officers for wrongdoing is one of the most important tests that can be applied to determine whether a judicial system is functioning properly or not. When a state is unable to investigate and prosecute crimes committed by officials, it cannot maintain a law-abiding society. A constitution that is unable to lay the groundwork for the same cannot be considered a successful constitution.
So judged, the Thai constitution is a failure. The case of Somchai is illustrative. The constitution was unable to contribute in any special way to resolve this highly-publicised and worrisome disappearance of a leading human rights defender. There seems to have been no provisions or legal avenues through which the investigators or prosecutors could have dealt with the more difficult questions arising from his abduction and murder. There seems to have been no possibility for effective remedies to arise out of the constitution as envisaged by article 2 of the International Covenant on Civil and Political Rights, to which Thailand is a party, despite the gravity of this case. The prime minister stated that the investigation into Somchai’s abduction has been difficult because state officers were the perpetrators. But one of the key concerns of a constitution is to provide avenues for investigations into even the most serious and complicated crimes.
The transition from rule by lords to the rule of law is about bringing the executive under the control of the judiciary, thereby ending privilege and exception. The 1997 Constitution of Thailand was a laudable attempt to do this. It was the result of a long struggle for social change. But by now it should be obvious to all that there remain many deeper problems that this constitution has so far been unable to address. The prime minister is admitting to this when he says that it has been extremely difficult to resolve this case because the criminals were state officers.
To complete the transition, further work needs to be done on Thailand’s constitution and institutions of justice, to end the privileges and exceptional treatment that state officers who have committed criminal acts continue to enjoy. The starting point must be to break the secrecy around their crimes. Where the state allows its own officers to keep secrets about crimes, it becomes impossible for it to demand that other people tell what they know in similar instances. Therefore, no one feels obliged to tell the legitimate authorities the truth, and the aims of a democratic constitution are thwarted.
The citizens of Thailand should have a right to direct access to the higher courts where their concerns relate directly to the protection and furtherance of the constitution. The senior-most judges in the country–including but not limited to those of the Constitution Court–need to exercise greater control over how the constitution is implemented and directed to improve the rule of law and protect human rights. Constitutional experts, lawyers, senior journalists and others should take the lead in furthering debate on the constitution to address these problems.
To complete the transition from rule of lords to the rule of law, more work needs to be done on the Constitution of Thailand and institutions of justice in the country to end the privileges and exceptional treatment that state officers who have committed criminal acts continue to enjoy. When another case like that of Somchai Neelaphaijit next comes before the courts, it is the possibilities–rather than the limitations–of the 1997 Constitution that should be realised.
