By Prach Panchakunathorn

Worajet Pakirat, a member of Nitirat (Photo by Prachatai)

Worajet Pakirat, a member of Nitirat (Photo by Prachatai)

I have blogged earlier about the group of legal scholars called “Nitirat” and their proposals. Last month they proposed to nullify the legal effects of the 2006 coup (see BP’s post here) and to amend the lese-majeste law (see my post here). They made headlines again last week when they proposed that a new constitution be drafted and replace the junta-drafted 2007 Constitution. They outlined what we may now call “Nitirat’s Constitution Draft”. The full draft is available in Thai here, and in English here (my translation).

Their constitution draft has drawn fierce criticism from some high-ranking military officers including the Army General, some academics, politicians from both the government and the opposition, and some media outlets (most notably Manager Online, Thai Post and The Nation’s broadcaster and executive Kanok Ratwongsakul).

The criticisms came in different forms: from simple dissent, to fiery censure, to outrage and frantic wrath. Sadly, in most cases the criticisms were not directed against the content of Nitirat’s proposal, but were personal attacks on Nitirat – for example, see Bowornsak Uwanno’s quote here, and Deputy PM Chalerm’s attack here (in Thai). Many involved purely subjective guesswork about Nitirat’s “hidden immoral motive” – for example, see the line of attack by the Democrats here and by some appointed senators here.

But what’s so controversial about the content of Nitirat’s constitution draft? Let’s look at it in detail.

Nitirat’s constitution draft has 15 sections. The first five sections deal with the most fundamental features that are supposed to define the Thai state – a kingdom, a democracy, the rule of law, the supremacy of the Constitution, a unitary state. Sections 6-14 concern how powers are to be divided and exercised, the limits to the authority of political institutions, and the rights and freedom that the state is obliged to uphold. The last section – Section 15 – is quite special. It concerns military coups specifically. This last section is where the 2006 military coup will be declared void, and its legal effects annulled.

The Section that has been most heavily criticised is Section 4, titled “The Supremacy of the Constitution”:

4. The Supremacy of the Constitution

The Constitution is the highest law of the country. Any law or rule that contradicts the Constitution cannot apply.
Set up a body whose responsibility is to maintain that laws be consistent with the Constitution.
The monarch has the duty to protect the Constitution.
•  A new head of state must swear an oath to abide by and to protect the Constitution before he/she takes the position.

The last provision (in bold) was the most controversial. But not many arguments have been given why making a new head of state swear an oath to protect the Constitution is such a bad thing. One argument, however, is given by Bangkok Post’s Veera Prateepchaikul, in his article titled “Nitirat has gone too far”:

The Nitirat group has overstepped the boundary with its latest proposal – that HM the King must take an oath before the parliament or, in the other words, before our politicians – people that many of us, I believe, find it quite awkward to wai let alone take an oath before them.

How can the Nitirat group, this group of Thammasat law lecturers, come up with such an outrageous, insulting and stupid suggestion? Undoubtedly, they have gone too far, they have gone beyond the acceptable.

Veera’s argument here is poor for several reasons. First, Nitirat never asks that the present king (i.e. “HM the King”) must swear an oath. Nitirat only proposes that “a new head of state” swear an oath to protect the constitution before he assumes to the throne. (Worajet, a member of Nitirat, confirms my point here.)

Second, Nitirat never proposes that in swearing an oath the new head of state must wai — so the mention of “wai” is irrelevant, and possibly misleading, here. Neither did Nitirat propose that the swearing must take place “before the parliament” or “before our politicians”. If anything, one should assume, rather, than the swearing in will take place at the coronation ceremony, before a new monarch assumes the throne.

Third, Veera claims that swearing an oath is awkward – even more awkward than wai-ing. But Veera doesn’t give us any reason why. What is so awkward about swearing an oath to protect the constitution?

Finally, even if we grant that it would really be “awkward” for a new king to swear an oath that he will protect the Constitution, I don’t see why a constitutional monarch should not endure a few minutes of awkwardness in service to the Constitution. And if any ordinary person thinks that it is inappropriate for a constitutional monarch to take an oath to protect the Constitution, then we may want to question his/her commitment to constitutional monarchy altogether.

Another controversial section is the one on the military.

13. The Supremacy of Civilians over the Armed Forces

•  Require that there be a Military Commissioner (“ผู้ตรวจการกองทัพ”) appointed by parliament.
Guarantee the right and duty of soldiers to disobey their superiors’ commands that are unconstitutional or clearly and severely violate the law.
•  High-ranking military personnel must be appointed by the cabinet.

Bangkok Post’s Veera argues:

Under [Nitirat's] proposal, the cabinet would be empowered to shuffle top-ranking military officers, instead of the defence council as is the case now. But this proposal pales when compared to another proposal calling for the appointment of political officials by the parliament to oversee career military officers.

This reminds me of the Soviet Union under Stalin, who kept iron-fisted control of the Red Army through the Communist party’s political commissars who spied on army officers and reported back to the party.

So making the military accountable to parliament is a Stalinist move? Then most democratic countries now must be Stalinist states in this sense. There is a crucial difference between keeping the military in control by parliament and keeping them in control by a dictatorial party (like the Soviet Communist Party). The difference is that a parliament is democratically elected while a dictatorial party is not. The absurdity of Veera’s argument lies in his omitting this difference.

Finally, some have criticised the last section — “Defence against Usurpation”.

15. Defence against Usurpation

•  Create a separate section in the new constitution concerning the “Nullification of the Legal Effects of a Military Coup d’Etat”, whose content is drawn from Nitirat’s proposal concerning the nullification of the legal effects of the 2006 coup.
Citizens have the right and duty to use any means to resist against attempts to take away the supreme power from the people (usurpation).
Specify that usurpation is a criminal act, and that after the supreme power of the people has been returned to the people, the usurpers must be prosecuted. Allow the period of prescription to start when the supreme power has been returned to the people.

The Nation’s Tulsathit Taptim, while acknowledging that “to try to send a stern message to the 2006 coup-makers is justifiable”, argues against Section 15 thus:

To try to send a stern message to the 2006 coup-makers is justifiable. Nitirat’s most original question was somewhat legitimate. Theft is bad, but should we kill a thief at every opportunity? If Thaksin was corrupt, did staging a coup make things worse for Thai politics? If a coup is worse than Thaksin, shouldn’t we do something – like legally erasing all its consequences – to deter generals with similar ambitions in the future?

To pay no attention to political ills that give pretexts to coups belies “good intention”. To Nitirat, it almost sounds like coups are bad and everything else is good. The group’s assertion that Thaksin could be held accountable in a normal democracy for his alleged corruption lacks an answer to the question “How?” To add to this line of criticism, the only tangible benefits of “erasing consequences of the 2006 coup” involve Thaksin and his assets. It’s practically no use revoking the dissolution of pro-Thaksin parties or the five-year ban on pro-Thaksin politicians, whose “punishment” (or persecution if you will) has almost run its course.

So Tulsathit is offering two arguments here. The first argument is this: military coups are like theft. Theft is bad, but we should not kill thieves at every opportunity. So we should not punish coup-makers at every opportunity.

This first argument is a terrible one. It rests on a bad analogy. Nitirat is not proposing that we should punish coup-makers “at every opportunity”. Nitirat is pointing to the fact that there have been numerous coup-makers before, and none of them has never been held accountable to the law, since they have always played legal tricks that gave them amnesty. So Nitirat is proposing that we should make a provision in the Constitution to allow the people, for once, an opportunity to punish them.

Or to put it in terms of Tulsathit’s theft analogy, Nitirat is not proposing that thieves should be killed at every opportunity. Rather, they are proposing that, since the existing law does not allow us to punish any thief, and since no thief has ever been punished before, it must make sense to change the law in a way that would allow us to punish thieves for once. Tulsathit’s bad analogy here misleads rather than enlightens.

Tulsathit’s second argument is that Nitirat is only focusing on holding coup-makers accountable for their crime, but neglects to hold politicians (i.e. Thaksin and his cronies) accountable for their crime (i.e. corruption). And this negligence to pay attention to the “political ills that give pretexts to coups”, Tulsathit argues, “belies [Nitirat's] ‘good intention’”.

But there is one thing that Tulsathit overlooks, which makes his argument fundamentally flawed. There is a crucial difference between the coup-makers’ crime and politicians’ crime that we are talking about here. The coup-makers are protected by a special clause in the present constitution — i.e. the clause that gives amnesty to all illegal activities that they have done during the period of the coup. No such special clause exists to prevent us from holding politicians guilty of their crime. So the point here is that while it is possible to hold politicians accountable for their crime under the present constitution, it is not possible to hold coup-makers accountable for their crime in the same way. This is the point of Section 15: to eliminate the special provisions that grant unwarranted amnesty to the coup-makers, and make everyone — politicians and military generals alike — subject to the same set of laws.

Prach Panchakunathorn is now a graduate student in Philosophy at Cambridge University. He received his B.A. in Philosophy, Politics and Economics (PPE) from Oxford University, UK.