The interim prime minister of Thailand, General Surayud Chulanont, on November 7 told the Foreign Correspondents’ Club in Bangkok that his government is committed to “restoring the rule of law”. In his speech, he said that there had been a “rapid deterioration” in the rule of law under the preceding government of Pol. Lt. Col. Dr. Thaksin Shinawatra. He stressed that the rule of law means that “every citizen stands equal in the eyes of the law” and that his military-appointed administration would make necessary reforms to administration of justice, the police and anti-corruption agencies.
The Asian Human Rights Commission, along with many other groups and individuals, had long pointed to the deterioration of the rule of law under the Thaksin administration. There is no debate about the fact that under the former government the power of the police was expanded immensely, the principles and institutions of the 1997 Constitution greatly undermined, and the administration of justice severely threatened. The Asian Legal Resource Centre published a number of extensive reports during this time speaking to these issues, one aptly titled, “Rule of law vs. rule of lords in Thailand”.
However, when it comes to the rule of law under his own administration, General Surayud is either very confused or a great storyteller. Either way, he has completely missed the point.
As the interim prime minister mentioned in his speech, one of the key features of the rule of law is that every person is equal before the law. This notion entails that no person is above the law. It implies that all persons, without regard to rank or other conditions, are subject to the ordinary law under the jurisdiction of the ordinary courts.
However, under section 37 of the interim constitution of Thailand, the September 19 coup leaders and all persons assigned or ordered by them–General Surayud included–are exempt from any form of legal sanction for any actions before, during or after the coup:
“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.”
Section 37 of the interim constitution is a direct contradiction to the rule of law. It places the coup group and its people beyond the reach of the ordinary laws and courts. Therefore, if the interim prime minister wishes to restore the rule of law to Thailand he must begin by approaching the courts to repeal this provision.
Another remark made by the interim prime minister apparently has an unintended meaning. He said that on the one hand, “I am not a politician and I am not bound by special interests.” On the other, he added that, “I have the authority and the power that comes with being an appointed prime minister to act quickly and decisively.” General Surayud has made a virtue out of a vice: the fact that he is unencumbered by any political parties and an elected parliament, he says, is a good thing.
Inseparable from the rule of law is the notion of parliamentary sovereignty. This means that an independent parliament alone has the power to pass acts, free from interference, with effect in law. Those acts may then fall within the exclusive purview of the courts. In this way the judiciary too is strengthened, and its role reaffirmed as the arbiter of the law.
The prime minister’s assertion that he is free to do what he needs to do to uphold the rule of law is a non sequitur. Only a head of government bound by the institutions of the rule of law, among them a functioning parliament and courts, can uphold the rule of law. The prime minister’s very position, and his assertion of his authority to act upon it, is itself a violation of the rule of law.
In the absence of a sovereign parliament, who is making the law in Thailand today? Certainly no one answerable to the people of Thailand: an unelected assembly of military and police officials, bureaucrats and academics is acting on their behalf. No evidence of the rule of law there, either. And nor can any be found in section 36 of the interim constitution, which gives orders by the coup group the force of acts of parliament:
“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.”
These are but two among the many contradictions inherent in the prime minister’s position. The opening remarks of his speech, on how free expression was restricted under the previous administration, were also particularly disingenuous, given the tight controls on outlets for free opinion in Thailand today. Rights to freedom of assembly and other basic civil liberties continue to be seriously curtailed. Nor are there any grounds under the interim constitution upon which basic human rights can today be asserted in the courts, unlike before September 19.
“Without the rule of law nothing else matters,” General Surayud said. The Asian Human Rights Commission concurs. And it is this that makes his administration untenable.
Like the Cambodian government minister who once said of the courts that, “I will make them independent,” the interim prime minister of Thailand has either thoroughly misunderstood or misrepresented his role and obligations. If he sincerely seeks to uphold the rule of law, he should find a way out of his post as fast and safely as possible, and leave the business of reform to others. If he is being dishonest and has made these remarks only to satisfy his audience then it will be up to others to remove him. Either way, his administration must end before the rule of law begins in Thailand.
