The Asian Human Rights Commission joins with people in Thailand today to recall and celebrate the ninth anniversary of their 1997 Constitution.
It was on 11 October 1997 that for the first time the people of Thailand realised their popular aspiration towards government based upon a rational set of standards applied to all persons, rather than one set of standards for rulers and another for everyone else. This aspiration arose from the 1992 protests against military rule and deep frustrations at decades of unaccountable governments.
The 1997 Constitution was unprecedented. It was the first to be drafted by an elected assembly, rather than persons handpicked by the army–the earlier model to which the latest military junta is reverting. The drafters met and discussed the shape and contents of the constitution with people all over the country. Hundreds of interest groups were established to raise and carry forward discussion on and around the drafting. Social debate and exchange flourished.
The constitution initiated extensive changes to all branches of government and their procedures, alongside strong affirmations of constitutional rights. These were to be furthered through new institutions and laws, and were upheld by the courts. When protestors against the Thai-Malaysian gas pipeline project were prosecuted, they were acquitted after asserting their rights to assemble and express their opinions freely under the constitution, as were local administrative officers sued by a company for organising meetings against a proposed phosphate mine. Officials of the Anti-Money Laundering Office were found guilty of breaching the constitutional right to privacy of five social activists whose bank accounts and other personal financial details they had illegally investigated. A lawyer sued the public prosecutor for denying him a job because of a physical disability; the court decided that he had suffered discrimination in breach of the constitution.
There were also many innovations. Radio and television broadcasting were identified as national resources to be used in the public interest (section 40): the ground upon which media rights campaigner Supinya Klangnarong successfully stood in court against the huge resources of the former prime minister’s telecommunications empire. Government departments had to inform people of any project that may affect their local environment or quality of life before giving it approval (section 59): the basis for a 2004 judgment against the industry minister and overturning of a mining concession in Khon Kaen that had not first been subject to public debate.
New innovations encouraged new thinking and behaving. Jinthana Kaewkhao, the organiser of a protest against a power plant concession in Prachuab Kiri Khan, won her case after the court defended not only her rights to free assembly and speech but also her right to participate in the management and preservation of natural resources under section 46 of the new constitution. The court went on to observe that this and other new provisions in the law were specifically intended to develop a democratic administration that obliged greater involvement by ordinary persons in public and political life than had earlier charters.
The 1997 Constitution marked a great advance in the thinking of people in Thailand on constitutional issues and the management of their society. It enriched the behaviour of millions. It also constituted a great advance in the notion of consensus. Whereas “consensus” had earlier been understood in terms of patronage–what the elite decided on behalf of everyone else–it was now understood as mature agreement among the general public. Ordinary people throughout the country soon demonstrated a better grasp of the true meaning of consensus than had the traditional authorities.
No society remains stuck in time. Conditions change, new issues emerge, and old ones persist. In Thailand, deep divisions again became painfully evident under the government of Pol. Lt. Col. Thaksin Shinawatra. However, solutions cannot be found in one person taking matters into his own hands and ordering everyone else to comply, as General Sonthi Boonyaratglin has done. Although this may create the illusion of momentary calm, its ultimate consequence can only be greater disharmony. When people have become accustomed to a legitimate role in public debate it cannot simply be taken away from them. They will find alternative ways to express their doubts. They will resort to their own methods to obtain solutions, with or without the approval of others. Discontent again spreads and society grows more fractious.
Good constitutions do not die simply because bad governments abuse them. The Constitution of India was not destroyed by Indira Gandhi’s dictatorial emergency rule in the mid 1970s; it was used by the people to oppose and defeat her. The Constitution of Nepal did not die despite the efforts of King Gyanendra to reimpose absolute monarchy; again people fought back and restored their democracy. Nor is the Constitution of the United States of America dead, despite the immense abuse of powers by the Bush administration. So it is also for Thailand. The 1997 Constitution was not killed by the Thaksin government, as some people have said; nor can the army get rid of it.
The September 19 coup group may have torn up the paper on which the 1997 Constitution was written, but it cannot erase its spirit. The generals cannot undo the history of popular involvement that led to its drafting, nor can they deny the intensity of interest and awareness in the drafting process that it generated. The only way out for them now is to open the way for public consultation and return to the hard work of the 1990s, to the foundations for a new society laid on 11 October 1997. Only in this way can those foundations be built upon and improved. Anything less will be a fraud, which when exposed will spell further disorder and conflict in Thailand.
Today, October 11, the Asian Human Rights Commission celebrates the 1997 Constitution of Thailand and congratulates its people on their marvellous achievement. The reports of its death are exaggerations. The 1997 Constitution is alive; alive among the people who made it.
