ALRC, lese majeste and the UN

26 02 2014

Reproduced in full:

February 24, 2014

Twenty fifth session, Agenda Item 3, General Debate

A written submission to the UN Human Rights Council by the Asian Legal Resource Centre

THAILAND: Legal and Extralegal Threats to Freedom of Expression

1. The Asian Legal Resource Centre (ALRC) wishes to raise grave concerns about the intensification of legal and extralegal threats to freedom of expression in Thailand. Carried out in the name of protecting the monarchy, this range of threats constitutes the entrenchment of the normalization of the violation of human rights and curtailment of freedom of expression. This statement is the eighth on this topic that the ALRC has submitted to the Council since May 2011. During the seventeenth session of the Council in May 2011, the ALRC highlighted the rise in the legal and unofficial use of Article 112 of the Criminal Code and the 2007 Computer Crimes Act (CCA) to constrict freedom of expression and intimidate citizens critical of the monarchy (A/HRC/17/NGO/27). During the nineteenth session in February 2012, the ALRC detailed some of the threats faced both by those who have expressed critical views of the monarchy, both legal and extralegal, as well as those who have expressed concern about these threats (A/HRC/19/NGO/55). During the twentieth session in June 2012, the ALRC raised concerns about the weak evidentiary basis of convictions made under Article 112 and the CCA (A/HRC/20/NGO/37) and the concerning conditions surrounding the death in prison custody of Amphon Tangnoppakul on 8 May 2012, then serving a 20-year sentence for four alleged violations of Article 112 and the CCA (A/HRC/20/NGO/38). During the twenty-second session in March 2013, the ALRC highlighted the January 2013 conviction under Article 112 of human rights defender and labour rights activist Somyot Prueksakasemsuk (A/HRC/22/NGO/44). During the twenty-third session in June 2013, the ALRC emphasized the regularization of the crisis of freedom of expression, and noted that constriction of speech had become constitutive of political and social life in Thailand (A/HRC/23/NGO/42). During the twenty-fourth session in October 2013, the ALRC emphasized the dangers of the normalization of the violation of human rights in the name of protecting the monarchy (A/HRC/24/NGO/35).

2. Over the course of the prior seven statements, the ALRC first noted with surprise the active use of measures to constrict speech, then tracked the expansion of this use, and finally, the entrenchment of the foreclosure of freedom of speech. The ALRC is again raising the issue of freedom of expression with the Council because the law has continued to be actively used to violate the right to freedom of expression and extralegal threats to freedom of expression, and human rights broadly, have emerged in Thailand. In the statement submitted to the Council in October 2013, the ALRC warned that the routine denial of bail and the use of vague references to national security to attempt to legitimize the violation of the human rights of those with dissident views had become normalized. In this statement, the ALRC wishes to alert the Human Rights Council to ongoing developments that indicate the urgency, and growing difficulty, of addressing the crisis of freedom of expression in Thailand.

3. There are two primary laws that are used to both legally constrict freedom of speech in Thailand and create a broad climate of fear for those who hold dissenting opinions. Article 112 of the Criminal Code criminalizes criticism of the monarchy and mandates that, “Whoever defames, insults or threatens the King, Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years.” The 2007 Computer Crimes Act (CCA), which was promulgated as part of Thailand’s compliance as a signatory to the United Nations Convention Against Transnational Organized Crime, has been used to target web editors and websites identified as critical of the monarchy or dissident in other ways. The CCA provides for penalties of up to five years per count in cases that are judged to have involved the dissemination or hosting of information deemed threatening to national security, of which the institution of the monarchy is identified as a key part. While Article 112 has been part of the Criminal Code since the last major revision in 1957, available statistics suggest that there has been a dramatic increase in the number of complaints filed since the 19 September 2006 coup; how often these complaints become formal charges and lead to prosecutions is information that the Government of Thailand has continuously failed to provide up to the present. The CCA has often been used in combination with Article 112 in the seven years since its promulgation; similar to the use of Article 112, the Government of Thailand has not made complete usage information available. This failure to make information public about the frequency and conditions of use of both laws creates fear and diminishes the space for freedom of expression through the use of secrecy and creation of uncertainty.

4. In addition to the continued use of the law to constrict speech, recent events indicate that there is an increase in the potential for extralegal violence against those who hold dissident views. During the statement submitted to the nineteenth session (A/HRC/19/NGO/55) in March 2012, the ALRC warned the Council about the threats made against members of the Khana Nitirat, a group of progressive legal academics at Thammasat University who proposed reform of Article 112. In response, hundreds of threats were posted online against the group, calling for the members to be attacked, killed, beheaded, and burned alive. Subsequently, one of the members of the group, Professor Worachet Pakeerut, was assaulted outside his office at Thammasat by two young men who later told the police that they attacked him because they disagreed with his ideas.

5. On February 12, 2014, an attack on another progressive academic, Professor Somsak Jeamteerasakul, a history professor at Thammasat University and outspoken political and cultural critic, indicates a renewed increase in the permissive climate for extralegal intimidation and violence of those who hold dissenting opinions. Two assailants fired repeated gunshots at the home and car of Professor Somsak. Although he did not sustain any physical injuries, the damage to his car and house indicate that the violence was intended to be deadly. The attack took place during the day, while Professor Somsak was at home, which lends further credence to the idea that the perpetrators intended to inflict harm or death and that they were unconcerned with being seen.

6. Professor Somsak Jeamteerasakul’s writing and teaching have inspired many students and citizens to carefully examine the past, present, and persecution of the powerless by the powerful in Thailand. His criticism often makes those in power uncomfortable, and there has been an attempt to use Article 112 to curtail his speech. In April 2011, a police investigation began against him in relation to a complaint likely made in relation to comments he made in article about a Princess Chulabhorn’s (one of the daughters of the current Thai king) appearance on a talk show. This case is still ongoing, even though Article 112 does not apply to Princess Chulabhorn, and so there is no legal restriction of comments made about her. In early February 2014, the deputy spokesman of the Royal Thai Army commented that the Army plans to file additional complaints of violations of Article 112 against Professor Somsak in relation to comments he posted on the social media website Facebook.

7. The ALRC is particularly concerned that the violent attack on Professor Somsak has come so close following the comments of the deputy spokesman of the Royal Thai Army regarding further proceedings under Article 112 against him. While the identities and motivations of the attackers remain unknown pending police investigation, the temporal link to the formal and legal action taken against him by the Royal Thai Army is striking. In addition, given the severe polarization in Thai society which began when the protracted protests against the elected government began in November 2013, this extralegal attack on Professor Somsak is a further indication of the ongoing breakdown of the rule of law in Thailand.

8. The ALRC would like to remind the Thai government that they are a state party to the International Covenant on Civil and Political Rights (ICCPR) and are bound to uphold the human rights principles named therein. In particular, the ALRC would like to call on the Thai state to uphold Article 19 of the ICCPR, in particular, paragraph 1, which guarantees that, “Everyone shall have the right to hold opinions without interference,” and paragraph 2, which guarantees that, “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” It is imperative that the Thai state’s protection of the rights guaranteed in Article 19 and the remainder of the ICCPR be active, rather than passive. Upholding the ICCPR necessarily entails protecting those whose views are dissident and ensuring that they can safely exercise their political freedom. Failure to do so will signal to vigilante actors that attacking those who hold different views are acceptable within the Thai polity.

9. The ALRC would also like to remind the Government of Thailand that under Article 19 of the ICCPR, restrictions on the right to freedom of expression are only permissible under two circumstances: “for respect of the rights or reputations of others” and “for the protection of national security or of public order (ordre public), or of public health or morals.” Although Article 112 is classified as a crime against national security within the Criminal Code of Thailand, and this, along with the need to protect the monarchy, is frequently cited by the Government of Thailand when faced with the criticism that the measure is in tension with the ICCPR, a precise explanation of the logic for categorizing the measure as such has not been provided to date. Until this explanation is provided, the constriction of freedom of expression is arbitrary and contributes to a climate hostile to human rights.

10. The ALRC is gravely concerned about the ongoing legal and extralegal threats to freedom of expression in Thailand, and their effects on human rights, justice, and the rule of law in Thailand. The intensification of extralegal threats to dissenting citizens’ rights and lives as indicated by the February 2014 attack on Professor Somsak Jeamteerasakul represents a new point of crisis in the longstanding climate of constriction of political freedom in Thailand.

11. In view of the above, the Asian Legal Resource Center calls on the UN Human Rights Council to:

a. Call on the Government of Thailand to ensure that a full investigation into the attack on Professor Somsak Jeamteerasakul is carried out and bring the men who shot at his house and car to justice;
b. Call on the Government of Thailand to release all those convicted or facing charges under Article 112 and the 2007 Computer Crimes Act. At a minimum, those currently being held should immediately be granted bail while their cases are in the Criminal or Appeal Courts;
c. Demand that the Government of Thailand revoke Article 112 of the Criminal Code and the 2007 Computer Crimes Act;
d. Urge the Government of Thailand to allow and support the full exercise of freedom of expression and political freedom, consistent with the terms of the Universal Declaration of Human Rights, to which it is a signatory, and the International Covenant on Civil and Political Rights, to which it is a state party, and;
e. Request the Special Rapporteur on the freedom of opinion and expression to continue ongoing monitoring and research about the broad situation of constriction of rights and individual cases in Thailand; and, the Working Group on Arbitrary Detention to continue to monitor and report on those cases of persons arbitrarily detained under Article 112.

About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.

Read this online from AHRC

25th Session of the UN Human Rights Council – AHRC

Read this online from ALRC

25th Session of the UN Human Rights Council – ALRC

No surrender to intimidation

3 12 2013

Khaosod reports that a group of Thammasat University academics have defied their rector’s order to close the campus, and have taught classes.

The rector is Somkit Lertpaithoon, a well-know anti-government academic. He closed the university for three days, “citing security concerns over the escalating anti-government protests in Bangkok,” protests he’d already supported.

The defiant academics viewed the rector’s “instruction as the cooperation with anti-government protest leader Suthep Thaugsuban, who has called for a nationwide strike by bureaucrats and closure of all universities to pressure the government of Prime Minister Yingluck Shinawatra into resigning.”

It is no surprise that those involved were from the Nitirat group that has bravely campaigned for “a more liberal change to Thai political system, such as the amendment of the draconic lese majeste laws, and spoken out against Mr. Somkid′s alleged conspiracy with anti-government factions.”

Members of the Nitirat told students that “Somkid′s order to close down the university is unacceptable as it leads to impression that Thammsat University has taken a side in the political crisis.” Their clas was a teach-in on the principles of democracy, a direct challenge to Somkid and the Suthep Thaugsuban plans for a non-democratic Thailand.

Academic Worachet Pakeerut stated that “the rector′s call for an unelected Prime Minister is not based on any academic principle and can be seen as supportive of an extra-judicial political change.”

Several acts of defiance were reported at Thammasat campuses.

Updated: Courts support junta constitution

21 11 2013

The outcome of the Constitutional Court’s (close) ruling yesterday is that the court has essentially ruled that changing a basic law that came from an illegal act is out of the question.

The 2007 constitution resulted from an illegal action by a military junta that overthrew an elected government and a widely-accepted constitution. It replaced it with a constitution drawn up by the junta’s hand-picked committee that was tutored by the junta and its unelected government. One of the reversions to type in that junta constitution was creating a Senate that could be controlled by palace-associated conservatives. That control came through appointed members and meant that opposition plus senators were likely to prevent popular change to law and the elite’s state.KangarooCourt

Those unelected senators are essentially appointed by panels of judges, creating an inherent conflict of interest when this conservative and undemocratic aspect of the constitution is challenged.

PPT went looking for some of the claims made by the promoters of the 2007 constitution when they were fixing it.

We found this commentary in an academic paper* that kind of summarizes the situation in 2007:

ConstitutionYou get a picture from this that parliament was to have control over the amendment of the constitution, and, indeed, amendment was to be by a simple majority in parliament. You also see that the current government has been struggling and campaigning to amend the constitution since it was being doctored into place by the military and associated royalist politicians.

The court has now made it clear that democratizing the Senate is virtually an act of treason by invoking Section 68:

Section 68. 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.

Of course, this is a logical and legal nonsense, but the kangaroos of the court know that their rulings create precedents for elected governments, while juntas can do what they like and make it “legal” later.The court’s ruling also made it clear that it remains an essential politicized element of the conservative control of Thailand’s politics.

While not making these same points, the logic of this analysis is reinforced by Nitirat lawyer Worachet Pakeerut’s statement reported at the Bangkok Post. He calls on the “government and its MPs should reaffirm their democratic rights by continuing with the charter amendment despite the Constitution Court’s ruling…”.

He argues that “the court has no right to halt the charter rewrite, which he considers is part of the democratic duty of elected parliamentarians.” There’s nothing incendiary in this, for that is exactly what the constitution says, and using Section 68 is a ruse by the court to maintain its control and to preserve the junta’s undemocratic constitution. Worachet is correct to observe that “the ruling showed the court reaffirming its role in counter-balancing the ongoing process of progressive democratisation.”

His challenge to “the Pheu Thai Party executives, the prime minister and self-exiled leader Thaksin Shinawatra to make a bold move and reassert their rights despite the court’s ruling,” is, PPT guesses, unlikely to be taken up for his suggestion that “parliament ignore the ruling” and “simply wait for the King to either endorse the amendment or return the bill untouched” shifts the political challenge to the monarchy, and the ruling party is scared witless about such a challenge and is petrified by the idea of pitting parliament against the king.

Not only are they petrified on the power of the palaces networks but they are frightened of the opening it allows opposition political grifters.

Update: The New York Times has a useful account of the court’s decisions, quoting one of the judges:

Supot Kaimook, one of the nine judges of the Constitutional Court, said in the court’s decision Wednesday that the rights of the minority were being trampled.

“Thailand’s democratic system allows the majority to set the standard,” he wrote. “But once it uses its power arbitrarily and suppresses the minority without listening to reason, this makes the majority lose its legitimacy.”

He said the system could no longer be called “democratic” when the majority acted this way. “It results in the tyranny of the majority,” he said.

This is the mantra of the Democrat Party, which loses elections with such regularity that it appears to use a political laxative, and supports the views of anti-democratic protesters who see their rich and privileges selves as a “minority.” The Times added:

To outsiders, the court’s reasoning may appear odd — the direct election of senators would seem to be a move that strengthens democratization. But in a country where mistrust of politicians runs deep and vote buying is common [PPT: we disagree for recent elections], the court argued that if both houses were fully elected, the “political class” would have “absolute dominance of power.” (Many law experts disagreed, with one saying on television that the court’s decision was bizarre.)

That bit in the brackets is in the story and not added by PPT. We could also describe the decision as “bizarre,” but, in fact, all Constitutional Court decisions in recent years could carry that description. In this sense, they are “normal” rather than “bizarre.” In other words, the court has made the bizarre normal.


*We are having trouble getting this link into the post. The academic paper is available as a PDF:

Nitirat on amnesty

1 11 2013

PPT thinks that Nitirat’s proposals on most legal matters are sensible and worthy of consideration. Its propositions on lese majeste are still important, if ignored because royalists are unable to relinquish one of their powerful political weapons and/or fear the reform of the law will bring down their world of privilege.

In the Bangkok Post, the group’s proposals that relate to amnesty – which have been around for a long time – are brought into the debate on the Puea Thai Party’s ill-considered bill.

Nitirat has has opposed Puea Thai’s amending of the amnesty bill tabled by Worachai Hema.

Worachet Pakeerut, a core leader of Nitirat points out that “his group had proposed the amnesty as a solution to the political stalemate, but the suggestion was not aimed at helping Thaksin [Shinawatra].”

Worachet said the current version of the bill “could be unconstitutional because it was not in line with the version approved by the House in the first reading in August.”

In a report at The Nation, Worachet also pointed out that the “bill also goes against the International Covenant on Civil and Political Rights (ICCPR) as it allows state officials and political manipulators off the hook…”.

He suggested that the government “could still save face by voting down the bill in the second reading…”.

If the government really wants to bring Thaksin home – as promised during the 2011 election campaign – Worachet said there were “[m]ore respectable ways” to do this than by this potentially “unconstitutional” and “blanket amnesty.”

As Nitirat has long pleaded, annulling the actions of the military coup junta and related administrations, would achieve this and would do it in a legally responsible manner.

Worachet “also asked why the amnesty bill does not cover those charged under the … lese majeste law, since such a condition contradicted the principle of people’s liberty.”

PPT hasn’t really bothered to say much about the dopey amnesty bill’s failure to include those charged and convicted and still jailed under this odious law. Quite simply, the bill is flawed so many ways that concentrating on lese majeste makes little sense.

In any case, on this bill, the only area where the government and opposition agree is on leaving out lese majeste cases. This bit of elite collusion is expected as each group shores up the declining monarchy and its declining prestige.

Piyabut Saengkanokkul, another Nitirat member, questioned the reasoning in extending the amnesty from January 2004, “covers many more incidents,” and this could “cause complications in identifying which cases were connected to the crackdown…”.

Worachet observed: “If the bill is passed into law, it would allow state agencies to crack down on all people’s movements without having to take any responsibility…”.

Listen to them.

The courts and Nitirat

15 01 2013

PPT recently quoted Nitirat’s Worachet Pakeerut when he explained why a revised constitution should include a section on amnesty:

Why is it to be in the constitution? That’s because an amnesty bill or decree will provide a blanket amnesty, but the proposed amnesty as a constitutional chapter will not cover authorities involved in crackdowns on protests after the Sept 19 coup in 2006 until the last election in 2011…. This [proposal] is unprecedented as it aims to teach a lesson to the authorities. It will be a concrete platform to dismantle the impunity in our society….

Of course, as we predicted, the conservative royalists have essentially responded “Never, ever, not now, not ever…”.

The Bangkok Post reports that a Court of Justice spokesman has delivered a critique saying it “does not conform to international judicial principles…”. We aren’t sure which other country or countries are included, but usually these kinds of claim are ill-informed.

Yes, judicial power is generally  “exerted by the courts,” yet in many disputes there are quasi-legal bodies with legal-like powers – a royal commission is one. But one of the issues with Thai courts is their political bias and corruption. Who will watch the judiciary?

Certainly not the Democrat Party, which rejects any change to constitution or judiciary as an attack on royalist power.

Never, ever, not now, not ever….

9 01 2013

The Nitirat group of Thammasat University law lecturers is again making proposals related to constitutional change. In an article at the Bangkok Post: attention is given to Nitirat’s proposal that political amnesty be a part of constitutional reform.

Because the Yingluck Shinawatra government has faltered on “an amnesty process for rank-and-file red shirts accused of violence during the political unrest in April-May 2010,” Nitirat “wants to put the amnesty as a chapter in the amended charter…”. Nitirat’s Worachet Pakeerut explained:

Why is it to be in the constitution? That’s because an amnesty bill or decree will provide a blanket amnesty, but the proposed amnesty as a constitutional chapter will not cover authorities involved in crackdowns on protests after the Sept 19 coup in 2006 until the last election in 2011…. This [proposal] is unprecedented as it aims to teach a lesson to the authorities. It will be a concrete platform to dismantle the impunity in our society….

This is an important and necessary innovation.

On the proposed amnesty chapter, “a five-member conflict resolution committee would be established and it would have the final say on the amnesty process.”

Predictably, an anonymous “member of the Law Reform Commission (LRC) said introducing national reconciliation laws or amending the constitution to bring about reconciliation could only be achieved when political sentiments were conducive _ and now is not the right time.”

Essentially, the royalist elite will say “not now, not ever” on such a necessary innovation as they reject any proposal that seeks to make Thailand more democratic.

Also in the “not now, not ever” category is a House sub-committee on constitutional change reported at the Bangkok Post. The idea that the principal legal tools of the royalist elite in the Constitutional Court and the Supreme Court’s Criminal Section for Holders of Political Positions should be dissolved is anathema to all royalists.

These two judicial bodies have been shown to be politically-biased and corrupt. In particular, the Constitutional Court has demonstrated a role as the proud defender of the indefensible royalist power structure.  Replacing them with new bodies that are independent would be a remarkable innovation.

Line in the sandFurther suggestions by the sub-committee to do away with other politicized bodies such as the Office of the Ombudsman are sure to bring cries of derision. The idea of  only having elected senators also strikes at the heart of the conservative changes wrought by the military-royalist coalition following the 2006 coup.

However, as with all that is associated with the military junta’s constitution, these courts and unelected bodies are on the wrong side of the line in the sand drawn by the royalist elite that continues to see itself as the rightful ruling class.

The fear is that the royalist rulers will lose power. Their cry will continue to be “Never, ever, not now, not ever.”

1932 principles of democracy and constitutional rule

30 09 2012

“Thailand needs a re-incarnation of the 1932 democracy philosophy in drafting a new charter to return sovereign power to the people…” says the Bangkok Post in a report. It would never be an editorial! Heaven forbid! This is an article reporting an event at Thammasat University called “Lawyers and the Coup.”

What was it that the People’s Party/Khana Ratsadon said in 1932? The initial constitution of July 1932 that the toppled absolute king hastily scrawled “provisional” on is the one that most clearly reflected the view before the royalists got their politically grubby hands on the first “permanent” constitution, they said:

Article 1: The supreme power in the country belongs to the people.

Article 4: The person who is the king of the country is King Prajadhipok. The succession will proceed in accordance with the Royal Household Law on the Succession of 1924 and with the approval of the Assembly.

Article 5: If there is any reason that the king is unable temporarily to carry out his duties, or is not in the capital, the Committee of the People will execute the right on his behalf.

Article 6: The king cannot be charged in a criminal court. The responsibility for a judgement rests with the Assembly.

And so it goes on, establishing the sovereignty of the people.

Kasian Tejapira, a political scientist from Thammasat University opined that “the monarchy has become the core of whatever form of administration rules Thailand.” For PPT this means that the spirit of 1932 has been defeated. In fact, while the pre-1946 royalists tried violence, murder and rebellion to turn back the clock, from the time of the gunshot death of King Ananda Mahidol in 1946, the effort has been to compete for the allegiance of the military, and from 1957 to use the military to support the return of the monarchy’s wealth and power.

Worachet Pakeerut, a core member of Nitirat, declares – quite correctly – that the “1947 coup … was a landmark coup that unbalanced the power nodes between the monarchy (from the old power) and other political institutions (Khanarassadorn legislature). The post-1947 coup constitutions … strengthened the monarchy and created the privy council.”

Kasian points out that this unbalancing means that “[c]oups … have been endorsed in Thailand as long as they uphold the monarchical institution…”. That’s why some, including Nitirat, want to “add punitive measures against those who attempt to tear down the constitution…”. Kasian says that Nitirat is the only “the only group of public law scholars to stand up to coups…”. That he considers them a “a spectre haunting Thammasat University” is a sad reflection on the fact that royalists have come to control the university that was meant to be the people’s university rather than a school for royals and royalists.

Kasian declares that “Nitirat should, from now on, work towards collaborating with scholars in other fields in order to revitalise the image of ‘Thammasat University for the People’, as it once was…”. What a great idea!

Worachet explained that “all constitutions after the 1947 coup, particularly the 1991, 1997 and 2007 charters, returned power to the monarchy, including the decision on the succession to the throne without referring to the endorsement power of the parliament.” He added that the succession of coups meant that “judges and lawyers therefore would always abide by the coup rules and regulations.”

Worachet called for a new constitution that would include “reforms of monarchy, political institutions, judiciary, and military.”

Taking aim at Nitirat

18 08 2012

PPT doesn’t think it a coincidence that as the Army chief returns to threatening behavior that the (relatively quiet) Nitirat group receives threats. At Prachatai it is reported that on 17 August, members of Nitirat “went to Chanasongkhram Police Station to file a complaint after mysterious men had been seen at their [Thammasat University] offices taking photographs of their schedules to meet students.”

Nitirat’s Worachet Pakeerut told Prachatai that “similar incidents had seemed to happen more frequently lately at the campus in Tha Phrachan.”

The police say they want the university “to provide its security surveillance video footage for the police to investigate and consider whether the men in question had meant any harm.”

Members of Nitirat, who have argued for constitutional change and amending the lese majeste law, have good reason to be suspicious following the attack on Worachet in February by thugs who happen to be weapons “enthusiasts” and have been photographed as snipers and compared to Army marksmen in some photos.

Attacks on political opponents, threats against them, and raising the political temperature are all well-tried tactics used by the military over several decades. Of course, there is no evidence that the military is directly involved in any threat to members of Nitirat, yet the coincidences of recent events (“peace talks” in the south, Thaksin Shinawatra’s U.S. visit, continued discussion of the monarchy’s decline, Army statements on red shirt deaths, and charges against Robert Amsterdam and a translator) are striking.

Court defends the military’s constitution

14 07 2012

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.


Further updated: The Constitutional Court simply has to be politically biased

8 06 2012

Kaewsan Atibhodhi has a long history of anti-Thaksin Shinawatra activism followed by deep engagement with the military junta after the 2006 military coup. He is a former member of the junta’s Assets Scrutiny Committee that was charged with investigating Thaksin and the claims of unusual wealth, policy corruption and so on.

He has recently joined the ultra-royalist Siam Samakkhi group that has insistently rallied against constitutional amendments.  In March, at one of its rallies, along with its head, who is a former member of the post-coup military junta, and joined by a range of elite supporters like Tul Sitthisomwong and Chirmsak Pinthong, they cheered two thugs who had beaten up Nitirat’s Worachet Pakeerut. So much for rule of law amongst Siam Samakkhi and its supporters!

Kaewsan and his ultra-royalist buddy Tul

With all of this background, Kaewsan – a lawyer – is the perfect advocate for the Constitutional Court’s political and illegal intervention and his argument deserves attention.

At the Bangkok Post, Kaewsan states that those who petitioned the Court see “efforts to pass the charter amendment bill as an attempt by some legislators to overthrow the constitutional monarchy.”

The “evidence” for this claim is the attempt to “amend Section 291 of the constitution, which would allow a Constitution Drafting Assembly (CDA) to be set up to rewrite the charter.”

In fact, this move by the government is attempting to meet an earlier demand by the Democrat Party and other ultra-royalists for increased consultation beyond that currently in the constitution, where all the emphasis is on parliament.

Despite this concession, the ultra-royalists are unhappy and (again) conjure an anti-monarchy plot claim. Kaewsan says the:

“complainants believe the Pheu Thai Party will exert undue influence on the CDA as it is set up. They also expect the party to influence the public hearing process and the types of changes which will be made to the charter by their hand-selected assembly. The petitioners say they are concerned these amendments will eventually bring about the overthrow of the constitutional monarchy.

In other words, the case made by the petitioners is a sloppy collection of cockeyed ideology, guesses, and suppositions.

Even so, Kaewsan’s understanding is that the Court is on board with these beliefs and suspicions: “I understand that the Constitution Court wants to know how the charter will be rewritten.”


Of course, the Court has no legal power to do this (see below). So Kaewsan “explains” that in:

“reviewing the petition, the court may interpret Section 68 of the constitution mainly in the political aspect, not the legal aspect.

If that isn’t clear, Kaewsan then embarks on a discussion of why the Court must be political:

If we consider the case in a purely legal light, it is correct … that the court does not have authority to suspend parliament’s readings of the constitution amendment bills.

Let’s repeat that: the Court has no legal authority. None. But that doesn’t stop the ultra-royalists like Kaewsan:

if we take into account the petitioners’ concerns about political manoeuvring, it is a different matter and the court’s decision to suspend proceedings can be understood….

He’s right. The Court’s illegal but political decision is easily understood as a politically-driven intervention based on royalist ideology and conspiracies:

The court made its decision because groups of people told the judges that moves are afoot to overthrow the constitutional monarchy.

Of course, their ultra-royalist allies at the Constitutional Court believe such nonsense, so when they get the order to intervene they are more than willing to take politically-biased and illegal decisions. Kaewsan cheers them:

The court should consider overall conditions when making its decision, not just the legal aspects. Based on this overall premise, the court has authority to suspend the process.

Yes, the Constitutional Court is not about the law. It is about politics and double standards. Kaewsan makes this crystal clear.

What do the complainants (and the Court) see as the threat to the monarchy under a process of constitutional reform? Kaewsan says they:

believe the [Puea Thai] government will use off-parliamentary power _ the red-shirt groups _ to augment its majority in parliament to acquire a level of state power which may exceed what is provided in the constitution.

More supposition, ignoring the fact that, today, following the initial acts of the People’s Alliance for Democracy, even the Democrat Party has its own extra-parliamentary “power.”

As we noted, Kaewsan is a lawyer, so we might wonder why he condones illegalities and the destruction of the Courts by ultra-royalists. In fact, he has a long history of playing fast and loose with law. Back when he was with the ASC, he made the remarkable claim that “evidence and witnesses are useless,” when one of its panels recommended legal action against Thaksin without hearing 300 witnesses or considering 100 additional pieces of evidence (Bangkok Post, 9 April 2008).

Nothing much changes when it comes to the ultra-royalist opposition to Thaksin, to elections and to ideas about popular democracy. The “protection” of the monarchy and the system it symbolizes trumps law, constitution and the voice of the people.

Update 1: As an antidote to this ultra-royalist dissembling, two articles in The Nation may assist. The first, cites four legal experts: “Somchai Preechasilapakul, from the Law Faculty of Chiang Mai University said he wondered if the judiciary had any power over the legislature, the power of which is connected to the public”; “Chulalongkorn University law lecturer Manit Jumpa also said he disagreed with the court’s decision to accept the petitions…”; “Mano Thongpan, an academic on law who is formerly an executive of the Law Society of Thailand, said that he did not think this case required urgent attention from the Constitution Court”; “Political scientist Likhit Dhiravegin, speaking at the same seminar, also questioned the court citing Article 68 for its decision to accept the petitions directly from the people, not a state agency.” The second story involves the statement from the real agency responsible for assessing the constitutional reform/amendment=conspiracy to overthrow the monarchy claim, the attorney-general:

The Attorney General’s Office said yesterday that government-sponsored bills to amend the Constitution were not aimed at overthrowing the political system, as has been alleged in petitions filed separately by five groups of people.

Winai Damrongmongkolkul, a spokesman for the agency, told a press conference last night the Attorney-General decided not to forward the petitions to the Constitution Court. “The amendment bills will not result in changes to the political system that are unconstitutional,” he said.

Update 2: PPT has been watching Prime Minister Yingluck Shinawatra’s non-involvement as an indicator of her lack of attention and fortitude for anything controversial. The Nation reports today: “… PM Yingluck Shinawatra has decided to avoid what could be a contentious debate, saying she has a busy schedule until next week.” What’s so pressing? What trumps the Constitutional Court’s launching of yet another judicial coup? Well, there’s flood stuff. Visiting people and looking at flood preparations. Yes, floods and preventing them are important, but missing this debate is a capitulation.



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