On 31 August 2007 the Court of Appeal in Thailand upheld the decision of a lower court that a group of persons had in 2002 been exercising their legal rights under the abrogated 1997 Constitution when they went to protest about a gas pipeline project on the border with Malaysia, leading to clashes with the police. The court agreed with the lower court that the protestors had simply been exercising their constitutional rights to assemble and participate in decision making on natural resources, and that there was no evidence that they were responsible for the violence that had ensued. In reaching its findings, the court also explicitly took into consideration the investigation reports into the events of that December 20 made by a special senate inquiry and also the National Human Rights Commission.
The sister organisation of the Asian Human Rights Commission (AHRC), the Asian Legal Resource Centre, in June 2007 published a report entitled “Thailand’s struggle for constitutional survival” in which it adverted to this and a number of other cases in which rights under the 1997 Constitution had been directly invoked by the courts (article 2, vol. 6, no. 3, www.article2.org). It pointed out that people who had written off the former constitution thanks to the advent of the Thaksin Shinawatra government had missed the point. The building of genuine constitutionalism is not something that happens overnight, through the making of some new agencies and mechanisms: rather, it involves the long-term development of habits and patterns of behaviour and thought to protect notions of the rule of law and human rights.
This case illustrates how the seeds of the 1997 Constitution had been well-planted in the courts, and were beginning to sprout. With time they might have matured and borne fruit; however, the military coup of last September 19 put an end to all of that, and has since reimposed a fraudulent version of constitutional order that owes much to the tradition of military-bureaucratic control of the country from previous decades. The full consequences of the coup on the courts of Thailand remain to be seen, but it must be said that the possibilities created by 1997 do not exist any more.
This is also a clear example of the sort of evidence-less prosecution of innocent ordinary persons that characterises at least 30 per cent of cases brought into Thailand’s courts. The so-called evidence presented by the police to back the case included a red flag on a bamboo pole: the argument being red is an aggressive colour, indicative of the protestors’ supposed intentions to turn violent. Both the court of first instance and the appeals court rejected this and other material presented by the police, such as video footage of the rally that had been edited to be out of sequence. Nor could the police present anything to prove that they had ordered the demonstrators to disperse prior to their violent break up of the rally, as claimed.
Now that both a lower and higher court have unequivocally decided on this case, there is no need for the public prosecutor to waste any more state funds pursuing the matter to the Supreme Court. Evidently the real perpetrators were–as in so many other similar instances–the security personnel; the case against the protestors has been conducted, as after the infamous Tak Bai incident of October 2004, to offset any possibility of effective action against those officers.
The Asian Human Rights Commission thus calls upon the public prosecutor to cease its needless pursuit of the accused protestors in this case, and instead turn its attention to more worthy cases in which real evidence exists: for instance, the case pending against General Pallop Pinmanee and his two subordinates over the killing of 28 persons in April 2004, which has already proceeded through a preliminary inquest and should now be under criminal investigation. As ten months have passed since the inquest found the three responsible for the deaths, and given that ample evidence must exist to support charges, it would seem commonsense for the prosecutor to spend time and energies on this case rather than in fighting a needless battle against a few regular citizens who in 2002 were doing no more than exercising their rights under the only genuine constitution that Thailand has ever had.
