Rights, Liberty, Constitution and the Rule of Law: Theory that Never Existed in Thai Society

(Translated Version)

By:  Chris Potranandana

Siamrath newspaper 29/04/2010, Krungthep Turakij newspaper 04/05/2010

As political battles are increasingly flaring up, Thailand has never ever witnessed so much confusion— not to mention the mass gathering of the “red shirts” or the M 79 grenades that have showered over Bangkok more than a month now.  And yet there has been action by various groups to help diffuse the situation, including a proposed solution to the political crisis through amendments to the Constitution. This writer is of the opinion that if readers have a basic knowledge of the background of the political situation in Thailand, they will have a better understanding of these events.

The term “constitution,” according to the general public’s understanding and to the traditional textbooks taught in tertiary level education, mainly refers to the indisputable supreme law of the state with important details as to the form of government, constitutional organization, administration and management, eg. parliament, government, courts and the system of checks and balances, etc.  However, an important matter that must be considered as the core principle of a “constitution” is largely ignored by Thai society, i.e. protections that deal with rights and liberty.  It can be seen that many constitutional protections are not truly enforced in Thai society.  For example, there are the rights concerning the arrest of an accused law breaker. An alleged narcotics offender has to be seated for photo taking with the exhibited evidence as if already tried and convicted, despite not yet having been taken to court. We clearly see this sort of thing in daily police activities as well, whether it is the issuance of unlawful orders or taking away the motorcycle key from driver after a traffic stop.  From such incidents, the writer can pose the question as to what has happened to the more than 40 articles on rights and liberties contained in the constitution. And what is more pathetic is that the people in Thai society have to suffer daily and submit to violations of their rights and liberties passively without any recourse regarding the actions done to them.

The question raises the point of how we can enforce the law, to make it sacred, to truly afford and protect everyone’s rights and liberties, to make law apply fairly and equally to everyone, no matter who or where they are. In other words, to put it in academic terms, how can we create a sense of “the rule of law”?              

What we might consider is the history of the countries where the concept of the rule of law has been present, be it the struggle of the USA to liberate herself from England, the French Revolution, or the fight in the British House of Commons to decrease the power of the House of Lords.  If we learn from the history of these countries, we will see what it is that is different from Thailand.  That is the fact that their people have had to fight and sacrifice to limit the power of those who rule and force them to cede the power that truly belongs to the people.  After they got those rights, a constitution was then enacted to preserve them.  However, this came only after much struggle and determination.  Therefore, the “constitution” in itself is not the source of those rights; it is only a document that spells out rights and liberties.  Conversely, the Constitution of the Kingdom of Thailand and the democratic system of government that the Thai people gained with the 1932 Constitution, originated through the efforts of a group of intellectuals who made a request for political power from His Majesty the King Rama VII (King Prajadhipok). This request was finally granted with the provision of a constitution for his people even though the majority of people in the country did not cry out for it. The fight then was only to seize power for the elite class in Thai society.  With this precedent, the constitution has been a tool of political groups to seize power for the past 78 years.  Hence, our constitution is just a piece of paper written about the rules and regulations for political groups to seize of power or technically speaking, it is a constitution in form without being at all a social contract.

Consequently, the law in Thailand is nothing more than an order issued by a small group within the elite class, telling people to turn left and right.  It is no different from that of a country with a dictatorship.  This is because these laws do not come from the majority of the people who have surrendered power to the government to represent them; the people do not realize its importance or love or want to dutifully guard it or even feel that they have to observe it.  They only feel that the law is frightening and they will only get into trouble by getting involved.  When a ruler breaks the law in governing, the people do not feel anything because even though they are governed by law, they do not feel they have any part in those laws.

What we should do now to get the country out of the crisis is not to amend the Constitution because amending the Constitution is a way to solve problems after a adequate system is in place (amendments must only be made for constitutional power to correspond with the balance of power in society, enabling the political system to evolve). Making amendments in the Constitution is, therefore, a modification of a document that is only enforced by politicians and the government officials.  Even if Thailand makes amendments of the best and the most democratic kind, it is not possible for Thai society to have the rule of law where the Thais’ rights and liberties are protected to the level they want.

What Thailand lacks now is not having a good constitution, but being conscientious in guarding one’s own rights and liberties to make possible the things mentioned above.  In the examples previously cited by this writer, those countries did not have the instant full blow of the rule of law once they got a constitution.  The USA proclaimed the constitution to be effective in 1787, long before the blacks were officially given equal rights in 1966 as a result of the Civil Rights Movement during 1955-1968. The rule of law can be born of the developments in the history of each country.  There must be a demand for rights from various groups of people through common practices of collective gatherings, demonstrations or protests.  Therefore, the political movements in Thailand at present are naturally demanding their political rights as all the developed countries have done before.       

What this article has been trying to demonstrate is that Thailand might have come to a milestone where her people can start to learn about their own political rights such as those that have appeared in the last five years.  There is nothing wrong with the political expression of both the “yellow shirts” and the “red shirts”. This should be encouraged and made to happen in Thailand.  The majority of the people must not think that political expression will only slow down the growth of the country, but only that we have to learn further the correct and proper way to exercise our rights.  This is like political evolution in any developed country — it cannot happen like a mushroom, growing overnight.  Thai people must learn how to exercise their own rights.  All of the following actions—vitriolic speeches, hatred, revulsion, or inciting violence or protesting with arms and weapons—must be changed.  When a mistake is made or there has been an economic loss or loss of human lives, a lesson will be learnt and not easily forgotten like in the past.  This writer believes that in the long run, our political gatherings will be better developed and we, Thai people, will certainly learn how to exercise our rights in the proper way.

The occurrence of political events and incidents are good signs that indicate that at least certain groups of people, maybe not all of the people of the country, have raised their political awareness, whether it be a mass gathering of the “yellow shirts” against Thaksin’ s government and his use of middle class tax dollars to pay for his populist policies; or the demands of the “red shirts”, exercising their own political rights in an attempt to obtain economic benefits for the poor and the rural people.  These examples can be considered as steps taken by the people to begin to realize and exercise their own rights.  Having seen the political crises over the last five years may not be the worst case scenario as long as Thai people, leaning on whatever side, have learnt a lesson and diligently guarded their own rights after striving to get them.  If deprived of their rights, they must not be passive, stand still and let their rights be violated the same way they have been before.  When the time comes, the Constitution will serve as evidence of rights and liberties similar to that of other countries.  Only then, will it be changed from a mere piece of paper and become a true social contract in the strictest sense.  Thailand may yet someday transform herself into an ideal state governed by the rule of law where everyone observes the law and is ready to develop in order to move forward and keep pace with the contemporary world once again, even if it means tolerating some upheaval during this time.