TRC on monarchy and lese majeste

Several days ago PPT promised to look at the Truth for Reconciliation Commission report on the monarchy. We now have the time to do that. In this post we look at its recommendations on the monarchy and on lese majeste.

On the “The Monarchy under the Constitution,” the TRC has three recommendations:

Urgent: All parties stop referring to the Monarchy for the purpose of obtaining political benefit and venerate the institution as being above political wrangling.

Mid-Term: The political sector should establish a method for ensuring that the Monarchy is held above political conflict. Such method should be in accordance with the development of our system of democracy.

Long-Term: The state should support learning and understanding about the Monarchy and the role of the Monarchy in the democratic system. Also, promote creative and peaceful forums for the exchange of opinions.

PPT comments: The TRC adopts a perspective that sees the monarchy as approximating the claims made for it over the period of this reign in the periods where there has been a constitution and the elite decision to develop a political system that describes itself as “a democratic regime of government with the King as Head of State.” This may seem innocuous, but the terminology is deeply embedded in several constitutions and notably, as we have seen in recent months, in Section 68 of the 2007 constitution, which states:

No person shall exercise the rights and liberties prescribed in the Constitution to overthrow the democratic regime of government with the King as Head of State under this Constitution or to acquire the power to rule the country by any means which is not in accordance with the modes provided in this Constitution.

In other words, it is illegal and unconstitutional to oppose the current political regime which demands the monarchy be in place. There is no alternative. The TRC is unlikely to challenge such a stipulation, so this is the conservative starting point. Interestingly, however, the TRC implicitly acknowledges the challenge to the monarchy following its very public involvement in the 2006 coup and all the political conflict that followed. In response, it demands that the monarchy be “venerated.” In other words, it is time to reconstruct the myths associated with the monarchy and politics. This is further emphasized in the recommendation that the “state should support learning and understanding about the Monarchy and the role of the Monarchy in the democratic system.” In other words, government of whatever party or group has to work to re-establish the monarchy’s mythic position. Part of that, it seem, is creating a space where people can discus the monarchy without being charged and jailed as republicans under the lese majeste law.

On the lese majeste law, the recommendations are set out in the same manner:

Urgent: The agencies of the justice [system] should avoid enforcing the lèse majesté law by using broader interpretation than the law itself stipulates. Further, that they do not use criminal prosecution in an overly strict way with lack of direction, and not taking into account the sensitive nature of these cases. The state should promote the use of discretion by agencies in the justice system involved in the proceedings of lèse majesté in a way appropriate to the nature of the offence.

Mid-Term: The state should arrange for the process of public participation that allows a variety of opinions to find the appropriate way to the amendment of lèse majesté law.

Long-Term: The state should amend the current lese majeste laws by first studying the criminal policies of other countries that have the monarchy so as to find the appropriate approach to the amendment. The state proceeds for the integration of work of the agencies that enforce the lèse majesté law so that they can categorize and screen relevant cases to proceed.

PPT comments: The TRC implicitly acknowledges that the lese majeste law has been used for political purposes; no big news there. It calls for both less strict enforcement (which was the norm prior to the coup) and attention to the sensitive nature of the charge. In fact, the “sensitivity” of the law and monarchy is one of the reasons those charged are seldom given bail and with remarkable pressure to plead guilty so that no evidence is ever discussed in court. The suggestion that the law be amended based on experience in other countries really doesn’t move the debate anywhere, as the problem is the very existence of the law that restricts free speech and thinking. There is no serious consideration of abolishing the law.

In the end, the TRC presents a kind of “thinking royalist” – if that is not an oxymoron – approach. Amend the law, keep the law and ensure that it remains available for the protection of the monarchy and the system of government that maintains the monarchy. There’s nothing particularly new in anything the TRC says, with the older generation of royalists like Anand Panyarachun, Prawase Wasi and others have made in the past.

Updated: The military still wants impunity

A report at The Nation makes it clear that the Yingluck Shinawatra government, despite its many acts of appeasement, still faces an intransigent military brass that considers itself the true leadership of Thailand and claims impunity for all of its murderous attacks on civilian opponents and activists.

Walking a thin line between appeasing the military bosses and satisfying its core red shirt base, the government seems to have wanted to walk with the military – its greatest threat – than be seen to be in step with red shirts.

The Nation refers to antagonizing the military are “foolhardiness,” yet it is clear that the actions of royalists at the Constitutional Court, the bossiness of the military, its antagonism on the south, and the failure of constitutional reform has caused the government and its backers to raise the stakes in the game with the military. The military bosses are not amused. As the report has it,

Last Friday, the Defence Council held a critical meeting, which should serve as a wake-up call for coalition politicians…. Based on meeting insiders, Defence Minister Sukampol Suwannathat was a lone figure forced to sit and listen to the collective voices of the senior echelons from all branches of the armed forces.

It is particularly interesting that Defence permanent secretary General Sathien Permthong-in, seen as a staunch ally of the red-shirt movement, has openly abandoned his direct boss Sukampol to side with the armed forces.

After sidelining Sukampol, the meeting decided to nominate deputy Army chief Dapong Ratanasuwan as the first secretary-general of the new Operations Centre for the Southern Border Provinces. That was seen as an act of defiance by the top brass, as the government had made it very clear that it wanted Army chief-of-staff Sirichai Distakul for the job.

The Nation report tries to stress the significance of this meeting:

The top brass had never before convened their council to meddle in any appointments made outside their jurisdiction. But in this extraordinary case, their chilling message is crystal clear – the armed forces are ready to confront the government if necessary.

The report argues without much evidence or convincing words that the underlying struggle is actually “between the government and the opposition over fugitive former prime minister Thaksin Shinawatra’s pulling the strings to rein in the Democrat [Party]…”. The report asserts that the target of legal action over the 2010 crackdown by the Abhisit Vejjajiva government is aimed at Abhisit and his former deputy prime minister Suthep Thaugsuban. The military brass seem to be the collateral damage as the threat of charges against Abhisit and Suthep is meant to bring the Democrat Party in line so that Thaksin can return and/or get his loot back.

PPT thinks there just might be something in this. We think the hiatus in outright conflict that followed the massive election victory showed the royalist elite that their only political power resides in the military and judiciary. The Democrat Party is flawed and Abhisit tainted. However, the military was unable to immediately step up. It was obviously tired and frustrated after the 2006 coup, the failures of its governments under Privy Councilor Surayud Chulanont and Abhisit, and the inability of royalists to coax or demand political support from the electorate. It has been the struggle over constitutional reform that has reignited the flames. In this sense, the legal proceedings threatening to touch Abhisit, Suthep and the top brass is part of the struggle.

While the report reckons that constitutional reform is all about Thaksin, and there is something in that, it is also a royalist fallacy, for the demand for rejection of the constitution and for it to be thrown out or revised goes back to the time when the junta illegally ditched the 1997 constitution and replaced it with its less democratic 2007 version. That’s long before Thaksin lost his loot or was convicted on the one charge that the military junta made stick (so far). Our guess is that other cases against Thaksin will resurface shortly. There is a pattern to this, and Thaksin is the lightening rod.

Update: It is worth considering the latest struggle between government and military, which has seen each of three senior officers shunted off to  “inactive posts.” See reports in The Nation, Bangkok Post and Matichon.

Updated: Courts, constitution and freedom

A week ago PPT posted on the Constitutional Court’s efforts to silence red shirts. We noted there that the Constitutional Court’s business now involved making protesters political prisoners. In essence, the corrupt and politicized Constitutional Court has been accruing powers to itself that it doesn’t have and is attempting to make it a crime to speak against anything the court does or against any judge or judgement. Its most recent effort on this has been to have the Criminal Court revoke bail against scores of red shirts.

That action is now before the Criminal Court. The Nation, in a remarkably biased and illogical report, explains that the Criminal Court has gone even further in attempting to repress and control protest, noting that “… deputy chief judge Jumpol Choowong has banned the reds from using loudspeakers, street hawking, blocking traffic and disorderly conduct.” Presumably some of these things are already against the law, a bit like seizing Bangkok’s airports. In essence, the Court is warning red shirts and attempting to stifle possible dissent.

The court has taken extraordinary measures to prevent red shirts entering the court precinct.

Despite this action, red shirts “still plan to rally in a show of moral support for their leaders” facing the wrath of the politicized judiciary. This event is a part of the continuing struggle between the red shirts and the royalist judiciary, with the former challenging the latter’s role as protector of the establishment.

Oddly, The Nation’s account claims that “[s]ince 2005, the courts have handed down a number of landmark decisions which have found protests involving red and yellow shirts to be unconstitutional.” PPT can’t remember such decisions and asks readers to remind us. We’d imagine that the Constitutional Court would need to make such a decision (rather than a bunch of “courts”) and while we realize that the Constitutional Court doesn’t always follow the constitution and sometimes evidences a lack of knowledge of its contents, PPT would have thought that Article 63 of the 2007 Constitution would apply to all, including red and yellow shirts:

A person shall enjoy the liberty to assemble peacefully and without arms.

The restriction on such liberty under paragraph one shall not be imposed except by virtue of the law specifically enacted for the purpose of public assembling and for securing public convenience in the use of public places or for the maintenance of public order during the time when the country is in a state of war, or when a state of emergency or martial law is declared.

Section 44 of the 1997 Constitution was identical.

Update: A reader tells us that Bangkok Pundit has a post from 2008 that relates to the question above.

Suthep to go?

As many readers will already know, former Deputy Prime Minister Suthep Thaugsuban has seen a case against him move from the National Anti-Corruption Commission to the Senate. For a rather minor “offense” of trying to get some of his Democrat Party buddies into advisory positions, he could be banned for five years.

Suthep

Suthep says that, if banned, he’ll quit politics. It would be ironic if this rather minor infraction of rules, set out in the military junta’s 2007 constitution, was what sinks Suthep’s political career. Ironic because he deserves to be tried, along with military commanders and Abhisit Vejjajiva, over the orders to kill protesters in April and May 2010.

PPT wants to see the culture of impunity overturned, and putting Suthep and his sort on trial to determine their responsibility for murders and injuries while they controlled government.

Court defends the military’s constitution

AP reports that “Thailand’s Constitutional Court defused a potential political crisis Friday by dismissing a complaint that the ruling party’s attempt to amend the constitution amounted to plotting to overthrow the monarchy.” That’s only partly true.

The reason we say this is because, while the court dismissed the complete nonsense charge, it has maintained that the 2007 constitution cannot be changed without a referendum. This is simply a defense of a constitution put in place by the military junta to defend the royalist political order. It is also a decision that is devoid of any constitutional backing, not even in the military’s constitution.

The result is that the Constitutional Court has done exactly what it was expected to do: it has turned aside all of the statements by politicians, constitution drafters, the military junta, its government and even some of the court’s own members that the constitution could be changed after elections (in 2007).

Thailand’s undemocratic constitution is being propped up for the same reason it was established: to protect the royalist order.

The idea that the court decided that “the charter could be amended section by section, though it could not be entirely rewritten” is splitting hairs.

That charter amendment was “to topple the constitutional monarchy,” was said by the court to be “merely speculation…”. Of course it was, but the point was always to protect this undemocratic constitution, and the court has done that.

In addition, as Puea Thai’s Korkaew Pikulthong states, “the decision set a bad precedent,” by allowing the court “to intervene in the affairs of the legislative branch.” That precedent will be exploited endlessly by the corrupt and biased judiciary.

The Bangkok Post reports that the court’s ruling is “likely to halt the the Pheu Thai Party’s attempt to push the bill through its third reading in parliament.” That was the plan.

Despite the court dismissing a charge that the bill to amend the charter was an attempt to overthrow the constitutional monarchy, it also stated that the 2007 constitution was endorsed by a public referendum, so any attempt to abolish it and rewrite a new one should be approved in a similar fashion.

This is nonsense, but the court will defend this into the cuture, limiting efforts to alter the undemocratic charter. And, by making a ruling that was as clear as mud, any party trying to change the constitution or amend it is in a legal minefield. And, of course, the ultra-royalists will now be able to fight every amendment.

Worachet Pakeerut of Nitirat agreed “the court’s verdict was still problematic in many respects.” Worachet is right to insist,

that the charter rewrite process was an exercise of power by parliament as stipulated by Section 291. It had nothing to do with Section 68, which deals with the right to protect the charter. The court did not clarify this issue in its verdict….

He questioned why the court had to forbid the entire charter from being rewritten when it had ruled that the charter rewrite bill was not intended as an attempt to overthrow the democratic administration of the country.

The court’s logic appears to contradict itself, Mr Worachet said.

And the court has over-reached its powers more than once. Worachet refers to an “an improper precedent and this means any future charter amendments must be taken to the court first…”. That was also the plan.

 

Kill the undemocratic constitution

At The Irrawaddy a day or so ago, there was a story that has a Thailand ring about it. The main point is that:

the one issue that surely stands as the most important if Burma is finally to takes its rightful place as an equal in the community of nations. That issue is the 2008 Constitution—or rather, the need to scrap it in favor of a genuinely democratic charter.

That constitution, like Thailand’s 2007 version, was put in place by the military and was meant to entrench the military’s political power. Thailand’s version was meant to entrench the power of the conservative royalist elite.

In neither country has the rigged constitution been unchallenged and voters have been persistent in showing their desire for something more than the conservatives want to allow.

The article states that “[w]ith the exception of this handful of excessively privileged individuals, however, everyone else … knows that the country needs sweeping change, not just a fine-tuning of the established order.” In the article the business community is mentioned. In Thailand, the desire for change is broader, as it is in Burma.

The author concludes that “the only way to put power where it belongs—in the hands of the people—is by completely rewriting the Constitution.” That could easily be a comment on Thailand.

Updated: Reconciliation bills

The Bangkok Post reports that red shirt leaders have agreed with the Yingluck Shinawatra government should go to the back burner.

As PPT has stated several times, these are bad bills and don’t deserve to go ahead. However, the reason for pulling them – avoiding political conflict – is wrong-headed. Be that as it may, we are pleased that they are to be trashed.

We agree with the red shirt supporter quoted in the report: “We don’t want to reconcile with the Democrat Party that killed more than 90 red shirt supporters during the May 2010 rally…. What we want is to bring the Democrats to justice”.

In fact, what is far more significant than reconciliation that white washes is getting changes made to the military junta’s 2007 constitution. The test of the Yingluck government and associated red shirt leaders is how they deal with this issue and the threat from the Constitutional Court.

Update: A reader points out that we missed another story at the Bangkok Post where red shirt leaders point to the importance of the Constitutional Court’s verdict on constitutional amendment. PPT thinks that the court has made it clear that its verdict will be negative for the government.

Taking on monarchist claptrap

Over several years and several political administrations the monarchy’s taxpayer-funded ideologues at the Ministry of Foreign Affairs have “responded” to articles in the foreign media. They worry that these articles cast doubt on the standard lines about the monarchy and the draconian law that “protects” it, Article 112.

Usually the sans-evidence responses are a repetition of the standard line: first, the  tautology that the monarchy is constitutionally above politics so can’t be politically active; second, the lese majeste law is just a libel law; and third, another tautology, all lese majeste legal cases are handled strictly lawfully.

Seldom do those receiving such missives respond. That’s what makes the tête-à-tête at Foreign Policy worth a read. Author Joshua Kurlantzick wrote a piece in May that prompts a response from the Thai Embassy in Washington DC, and then Kurlantzick responds to that.

Readers can view the results at the link above. However, we think Kurlantzick missed some significant points in his response, and we feel compelled to make them.

First, if Kurlantzick knew PPT, he’d note that it is not just Paul Handley and Duncan McCargo who have shown the monarchy’s political role. At one of our pages, we have commentaries on this back to the 1970s, and our list is not comprehensive. Perhaps the first serious academic work, from 1997, is here. In other words, the critical commentary on the monarchy did not begin with The King Never Smiles.

The claim by the MFA correspondent that the king and monarchy “exerts no control over the direction of the country’s politics” is, quite simply, laughable. The statement that “to argue that the Thai royal family has been interfering with politics is clearly misleading and highly inappropriate” neglects truth.

Second, the MFA claim on lese majeste is a fabrication. It is stated that:

Legal proceedings in such cases, including those of Mr. Lerpong Wichaikhammart (Joe Gordon) and the late Mr. Amphon Tangnoppagul(Akong), were carried out in accordance with the rule of law. All of them have been accorded due process as provided by the Thai Criminal Procedures Code including the right to fair trial, due opportunity to contest the charges and assistance from their lawyer as well as the right to appeal.

Joe Gordon

This is a monarchist fairy tale. There is no recent evidence that Thailand’s courts even follow the country’s laws. The courts are corrupted political tools of the royalist elite. If that sounds harsh, then a glance at the military-back 2007 constitution should assist, for that basic law states:

Article 39. … The suspect or the accused in a criminal case shall be presumed innocent. Before the passing of a final judgement convicting a person of having committed an offence, such person shall not be treated as a convict.

This Article is routinely ignored for lese majeste cases where all those denied bail are treated as convicts. Almost all lese majeste suspects are denied bail, whereas murder suspects are bailed all the time.

Article 40. A person shall have the rights in judicial process as follows:

(1) right to access to judicial process easily, comfortably, quickly and indiscriminately;

(2) fundamental rights in judicial process composing of, at least, right to public trial; right to be informed of and to examine into facts and related documents adequately; right to present facts, defences and evidences in the case; right to object the partial judges; right to be considered by the full bench of judges; and right to be informed of justifications given in the judgement or order;…

(7) an alleged offender and the accused in criminal case shall have the right to correct, prompt and fair investigation or trial with an adequate opportunity in defending his case, the right to examine or to be informed of evidence, right to defend himself through counsel and the right to bail….

Each of the highlighted points are simply ignored for lese majeste trials. It is a simple as that, and it is this unlawful and unconstitutional judicial system that MFA defends with lies and deceit. Ampol, who died in jail through lack of adequate medical attention, had judges who decided he was guilty even when the prosecution could not prove the facts of the case.

Ampol Tangnopakul

Ampol was denied bail eight times. Joe has been denied bail 10 times! Ampol,  poor, sick and old was repeatedly said to be a “flight risk.” Both men saw their incarceration drag on, and as is expected of lese majeste victims, they both chose to plead guilty in order to end their cases. Ampol sought a royal pardon, citing his old age and health problems, but died waiting for mercy.

Joe remains imprisoned for a “crime” allegedly committed in the United States and which was perfectly legal action there, although there has been no evidence presented that Joe committed any action leading to his monarchist madness arrest in Thailand. As Joe himself pointed out, “In Thailand, they put people in prison even if they don’t have proof.”

PPT considers the use of extended incarceration to force a guilty plea to be a form of torture, as defined by the U.N.

So much for the MFA’s rule of law. The law is about the fear and repression necessary for “protecting” not just a highly politicized, remarkably powerful and obscenely wealthy monarchy but the whole system of economic and political power that it represents.

Prayuth wants secret trials

That Thailand’s constitution is nothing but a scrap of paper was proved by the Constitutional Court during the various lese majeste trials that Darunee Charnchoensilpakul had to suffer.

Article 40 of the 2007 Constitution clearly states:

A person shall have the rights in judicial process as follows:

… (2) fundamental rights in judicial process composing of, at least, right to public trial; right to be informed of and to examine into facts and related documents adequately; right to present facts, defences and evidences in the case; right to object the partial judges; right to be considered by the full bench of judges; and right to be informed of justifications given in the judgement or order;

When Darunee’s trial began in June 2009, the judge, citing reasons of national security, closed the trial, meaning it became a secret political trial. An appeal was also made to the Constitutional Court on the constitutionality of her trial in secret. Any reasonable person reading Article 40 would see that the secret trial was unconstitutional. But the Constitutional Court is not reasonable and not even interested in the constitution. This politically biased kangaroo court decided that a secret trial had not violated Darunee’s rights.

Thus it would probably seem reasonable that the Army’s boss would also demand secret trials. He can rightly assume that the Constitutional Court will continue to ignore the constitution!

At the Bangkok Post, General Prayuth Chan-ocha is reported as having”called for the testimony of witnesses in court hearings into the deaths of six people at Wat Pathum Wanaram in Bangkok two years ago to be kept secret.” That testimony is about the cold-blooded murder of red shirts, medical assistants and bystanders.

Of course such testimony should be secret! Why not? Prayuth certainly doesn’t want any gruesome details of the Army’s murder of civilians to threaten the Army’s longstanding impunity. Prayuth himself wouldn’t want to be accountable for the murder of civilians. The outspoken army boss is said to have “expressed irritation at disclosures of witness accounts…”. Yes, keep it all secret so that it will eventually disappear.

Prayuth bleated that: “The justice system will decide who is guilty or not.” We know that the “justice” system does that, but we also know that the courts are corrupt and politically biased.

The Army boss also issued a warning: “The army chief vowed he would guarantee justice for his subordinates and protect those who did their duty.” Oops, coup talk? Of course Prayuth was also part of the cabal that tore up the last constitution. Law and justice? As far as the Army bosses are concerned, they are the lawmakers, they make the rules and break them at will.

Thida on talking at the top of the pyramid

Buried in another story on the manic Suthep Thaugsuban claims, a story in The Nation caught our collective eye.

Chairperson of the United Front for Democracy against Dictatorship Thida Tawornsate Tojirakarn was asked about Suthep’s claims about Thaksin Shinawatra seeking to negotiate with him. Her response:

… she believed that the former PM had spoken to everybody, including the Democrats [she means the Democrat Party], the Army, businesspeople and even the ammart (elite).

We at PPT know that she is correct. She then adds:

This is called a game at the top of the pyramid, because it involves talking to the elite. I know that the elitists don’t want the reconciliation bill or the charter amendment. Therefore, I’m not surprised that they have exchanged proposals as they [the elite] had worked hard on the 2006 coup before gaining the 2007 Constitution….

The report states that Thida went further, arguing that:

she said she did not think the Pheu Thai Party would make such deals, because as long as the 2007 Constitution stays in place, the people will remain under the power of the ammart.

We understand this latter point as a kind piece of advice to the party’s bosses, Thaksin and Yingluck Shinawatra. However, the kinds of deals that these people, at the top of the heap, are prepared to do are increasingly looking like betrayal. They need to hear Thida’s advice and understand it.