The Nation newspaper of October 8 reported Professor Worachet Pakeerut of Thammasat University as saying that coups would continue in Thailand for so long as the courts there recognise the amnesties that perpetrators pass for themselves. Worachet had said that there “was a discrepancy in the Thai judicial system that recognised law written by people in power even though the law was against morality and people’s common sense”.
This “discrepancy” is the crux of Thailand’s problems. For as long as its higher judiciary legitimises illegal takeovers of power, there will be illegal takeovers. For as long as the orders of generals are written into law through new constitutions, there will be fictional constitutionalism.
The October 1 interim constitution is just the latest conspicuous example of a law written in defiance of both morality and common sense. Under its section 36
“All announcements and orders of the Council for Democratic Reform or orders of the Leader of the Council for Democratic Reform issued as of 19 September B.E. 2549 (2006) until the date of promulgation of this Constitution, be they in any form or enforced in a legislative, executive, or judicial manner, shall continue to be in force. These announcements or orders as well as any actions taken under them, whether before or after the promulgation of the Constitution, shall be deemed lawful and constitutional.”
As of October 13 there are 36 such announcements and 28 such orders listed on the website of the Council for National Security, the renamed coup group. Apart from scrapping the former government, the 1997 Constitution and Constitutional Court, they impose martial law, repeal earlier laws, amend the Royal Thai Police Act 2004, restrict free speech and movement, ban political gatherings, and set up new bodies. All have the force of parliamentary acts. What is more, section 36 clearly envisages more orders and announcements from the coup group in the future, despite the pretence of a 250-person assembly, comprising mainly of sitting and retired generals and bureaucrats, to do the work of government for the coming year.
Under section 37 of the interim constitution, the coup leaders have by implication admitted the illegality of their actions, and placed themselves beyond the law:
“All matters that the Leader and the Council for Democratic Reform, including any related persons who have been assigned by the Leader or the Council for Democratic Reform or who have obtained orders from the persons assigned by the Leader or the Council for Democratic Reform pursuant to the seizure of State administration on 19 September B.E. 2549 (2006) to take actions prior to or after said date for enforcement of legislative, executive, judicial purposes, including meting out punishment and other administrative acts, whether as principal, supporter, instigator or assigned person, which may be in breach of the law, shall be absolutely exempted from any wrongdoing, responsibility and liabilities.”
Equivalent sections can be found in previous constitutions of Thailand, with the important exception of the 1997 Constitution: the only one adopted through popular process, not force of arms or other autocratic means. Any permanent constitution approved by the current junta is also bound to adopt such provisions.
The problem with all of this is that, as pointed out by Professor Worachet, it is against common sense. How can an unconstitutional act be made constitutional simply by saying that it is so? How can an illegal act be made legal by declaring it thus? This is not legal pragmatism, as suggested by some; it is patent absurdity. It is the opposite of common sense; it is nonsense. It is also a blatant breach of international law and obligations to which the new government has promised to adhere: just one among many contradictions that have emerged in recent weeks.
With the 1997 Constitution, the higher courts in Thailand obtained unprecedented authority. In a 2003 paper Dr. James Klein described how,
“Thailand’s fifteen previous constitutions had been subservient to code and administrative law designed by the bureaucracy to regulate individuals in society by restricting their fundamental rights and liberties… Thai politicians, the military and senior civilian bureaucrats had always reserved for themselves the power to interpret the meaning of law and the intent of the constitution.”
By contrast, the 1997 Constitution sought to make itself the basis of law, with government agencies subordinate to it, rather than vice versa. This was nothing short of a revolutionary change, and it was bound to bring conflict and problems. So the Constitutional Court and some independent agencies–notably the Election Commission–became mired in controversy. Why should this be surprising? The development of new institutions, particularly where they challenge established authority, is by its very nature provocative. And before September 19 Thailand’s senior courts were addressing this conflict: a conflict that in essence was over whether society should be founded upon the rule of law or the rule of lords. They had public support and the backing of His Majesty the King. So what has changed since then? And where are they now?
The highest form of contempt of court is the extralegal removal of a judiciary and legislature, as happened in Thailand on September 19. It cannot be allowed to go unchallenged. If the superior courts meekly accept what has been done, as in previous years–and as if the 1997 Constitution never existed–they will lose the public confidence needed to address all issues of national concern in the future.
There is a small precedent. In March 1993, after the 1991 coup group had already been removed from power by public protest, the Supreme Court of Thailand found that a committee set up to investigate the former government was unconstitutional, and in so doing it overruled order 26 of the coup group. The time has come to build upon that example, and overrule some more. The job for the superior courts now is not to rule on the former government; it is to rule on the present one.
The Asian Human Rights Commission calls upon the higher judiciary of Thailand, and in particular the Supreme Court, to take a position on the illegal and unconstitutional assumption of power by the armed forces in Thailand of September 19. It calls upon the upper courts to assess the legality of the interim constitution of October 1, especially sections 36 and 37. It calls upon them to assess the implications of these provisions, among others, for the future of Thailand. It calls upon them to do this for the sake of their own integrity, and for the preservation of the values, laws and institutions of the 1997 Constitution. And it calls upon them to do this to make military coups history in Thailand.
Under the 1997 Constitution the people of Thailand gave substantial power to their courts. They did so for good reason. The courts must not betray them by allowing that power to be snatched away so easily. They must rule on the coup.
