In recent days there have been reports that expose Thailand’s new draft constitution and the proposed referendum to bring it into force for the sham and fraud that they are. According to news articles, the country’s military-appointed assembly has already passed the draft Referendum Act through a first reading. If the short, imprecise act is finalised, it will make it illegal for anyone to campaign for a “no” vote or even to campaign against the plebiscite itself, under threat of a maximum ten-year jail term. Even if amended to allow for “factual” campaigning on the referendum, it is clear that the main purpose of the law is to intimidate and silence persons who don’t share the official view. Meanwhile the administration is pumping vast amounts of money into “yes” propaganda that is set to increase exponentially in the months leading up to the vote. This is quite aside from further huge budget increases to the armed forces operating across the entire country, in addition to what is being poured into the futile and unceasingly bloody warfare in the south.
It is by now clear that if the referendum is passed and the bogus draft constitution brought into law it will return Thailand to a 1980s model of elite-bureaucratic government under military guidance. If it is not, the military regime reserves the right to pick and amend any of the country’s previous constitutions in its stead. In either case, the generals have already taken steps to ensure that their presence will again be felt heavily throughout Thailand for many years to come. The new national security act is set to give the resurrected Internal Security Operations Command (ISOC) the power to step in anywhere, any time on any pretext without requiring approval from the prime minister; its vast new budget and increased manpower will ensure that it will be doing so. Its provisions will also ensure immunity from prosecution for all persons acting under the law–which can be anybody nominated by the army chief–in the same manner as the Emergency Decree over the southern provinces currently guarantees that torturers and murderers among the police, military and paramilitary forces there never find themselves brought into a court.
General Sonthi Boonyaratglin, the coup leader who has indicated that he will continue to head ISOC after the coup group has retired from its duties, has said that he wishes to remodel the command on the new US Department for Homeland Security, apparently unaware about the amount of unease caused by the department among persons in the US concerned by excessive government and military power and declining civil liberties. And that is in a society with an active and genuinely independent legislature and judiciary, unlike those in Thailand. The bill that brought the department into effect was at least the subject of some sort of genuine debate, Senator Patrick Leahy referring to its provisions, like those in Thailand, as allowing for “vague, incoherent, or even obviously fictitious threats” to be used as a pretext for violating citizens’ fundamental rights.
Although the regime in Thailand has been at pains throughout to deny comparisons being made between it and its counterpart in neighbouring Burma, it is increasingly difficult to avoid them. In Burma too the junta is putting the finishing touches on a constitution that has the purpose of cementing the role of the military in state affairs for years to come and ensure the continued impunity of senior officers for any alleged wrongdoing. In Burma too the constitution will be brought into effect by a pantomime referendum; the details of which have not yet been announced, but can be safely assumed to include a no “no”-vote campaign clause. Likewise, Burma has a number of national security laws with the explicit purpose of delimiting civil rights and keeping the security forces’ hands in any affairs in which they take an interest. And yes, the government there also carves off vast sums of the national budget for military spending without explanation, transparency or the right of citizens to question the use of the money or obtain its details.
It is natural that the military government in Thailand has followed the same course, albeit with different specific characteristics, of that in Burma. It is normal because where constitutional law, the parliament and courts are displaced and made subservient to the armed forces, citizens’ rights to challenge and question government actions also are curtailed. The functioning of ordinary channels for complaint depends upon constitutional and institutional protections. Where these are removed, restrained or subjected to repeated alterations, the practical activities of lawyers and human rights defenders in using the courts and other channels to defend human rights also are undermined. As the law and regulations are themselves shifting and confused, the means to employ them effectively in defence of rights is lessened and people steadily lose confidence and interest in trying to do so. Ultimately, notions of abuse of power may cease altogether, as in Burma, and confidence in the capacity of the courts and related agencies to intervene in the interests of the public may be lost.
Under these circumstances, the authorities may also keep some legal measures for defence of rights, or introduce some new ones that give the appearance of a continued concern for the rule of law and notions of justice. In fact such laws or reforms will be trivial and meaningless when the system in which they are set has been gutted. People will learn this from observation and experience, and come to realise that lawyers, courts and even members of parliament cannot really guarantee anything; that the final arbiters belong to agencies and authorities far beyond these. A person whose son has been tortured by soldiers may then go, or be taken by well-meaning persons, not to fight for his rights in a court but to another part of the military apparatus to request some compensation and disciplinary action against the alleged perpetrators. Thus we find in a military coup the re-emergence of extremely primitive feudal behaviour, as the sophisticated legal and administrative systems needed for survival of a healthy and functioning modern society are steadily and often almost imperceptibly damaged and diminished until reaching the point that while external appearances remain, below the surface life is gone. Once at this point, a coup is completed. Talk about defence of human rights through institutions is then meaningless.
Ultimately, the notion of a constitution being replaced by military force is–from the perspective of human rights, justice and the rule of law–an absurdity. While government propaganda in Thailand may persist in trying to give the appearance of a decent and harmless coup, the effect of removing the paramount law of a country by force is to make clear that the country is lawless. The constitution, whatever constitution, has no real value. By implication, all the laws of the country, which are established under the constitution, are of limited worth. The notion of law itself is confused and weakened to an extent that what constitutes a law, or a court, is itself no longer properly understood. Thus the country has devolved, in legal and institutional terms, to an extremely barbaric point that will have lasting bad effects for generations.
The Asian Human Rights Commission again calls upon all concerned persons in Thailand to respond vigorously and urgently to the sweeping attacks on their basic rights that have come with this coup and with this latest move to deny opportunity to criticise the referendum. It also takes this occasion to call unequivocally for all citizens of Thailand to vote “no” to the draft constitution that will be put before them, all going according to the army’s plans, by August, and for the restoration of the 1997 Constitution, with minimum amendments, until after there is a newly-elected government in power in Thailand and some space is opened for sensible discussion on the key issues affecting the country’s future.
