Statement on the Occasion of the 1st anniversary of Nitirat

Khana Nitirat: Law for the People

Tha Prajan, 19 September 2011

Translated by Tyrell Haberkorn

Point # 1

The Nullification of the Resultant Effects of the 19 September 2006 Coup

The 19 September 2006 coup was an illegal act. The coup destroyed the rule of law and democracy. The coup remains the primary cause of political conflict from then until the present. For this reason, the Khana Nitirat proposes the nullification of the resultant effects of the 19 September 2006 coup as follows:

  1. Declare the coup and the various resultant legal actions of the Council for Democratic Reform under the Constitutional Monarchy (CDRM) from 19 to 30 September null and void, as if they never happened, and without legal consequence.

  2. Declare Articles 36[1] and 37[2] of the 2006 interim Constitution null and void, as if they never happened, and without legal consequence.

  3. Declare the rulings of the Constitutional Tribunal, the rulings of the Constitutional Court, and the judgments of the Supreme Court’s Criminal Division for Persons Holding Political Positions made under the authority of the Council for Democratic Reform under the Constitutional Monarchy (CDRM) null and void, as if they never happened, and without legal consequence.

    Declare the rulings of the Constitutional Tribunal, the rulings of the Constitutional Court, and the judgments of the Supreme Court’s Criminal Division for Persons Holding Political Positions resulting from the 19 September 2006 coup, in particular all of the rulings and judgments resulting from processes initiated by the Assets Examination Committee (AEC), which was instigated by the Council for Democratic Reform under the Constitutional Monarchy (CDRM), null and void, as if they never happened, and without legal consequence.

  4. Declare the matters under consideration both by officials of the National Anti-Corruption Commission, the Anti-Money Laundering Office, and the Office of the Auditor General and those that have been sent to the court discontinued.[3]

  5. The declaration of the rulings and judgments in (3) null and void and the discontinuation of the proceedings in (4) do not constitute an amnesty or a pardon or an absolving of those individuals accused of wrongdoing.

    This is not an expunging of all of the actions of those individuals accused of wrongdoing. Therefore, new cases can be started against those relevant individuals in accordance within the standard legal process.

  6. The Khana Nitirat proposes that the above points become the draft of a constitutional amendment. For democratic legitimacy, this should then be brought to the people as a referendum.

Point # 2

Revision of Article 112 of the Criminal Code

In line with the proposal made by the Khana Nitirat regarding the revision of Article 112 of the Criminal Code[4], which was made public on 27 March 2011[5], the following is proposed:

  1. The Khana Nitirat maintains that there are problems with the legality, use and ideology of Article 112 of the Criminal Code, and it must be revised.

    Relevant stakeholders should not deny that Article 112 of the Criminal Code is without problems and without need for revision insofar as this has not yet been fully studied or widely debated.

  2. The Khana Nitirat observes that Article 112 of the Criminal Code has a problem with regards to its constitutionality.

    This is especially the case on the point of balance between the severity of the crime and of the punishment meted out to those who have committed offences.

    This is not in accordance with Article 29 of the Constitution[6] which mandates that punishment must be proportional to the offence committed.

  3. The Khana Nitirat proposes that the Law Reform Commission should arrange for opinion hearings from the people on the issue of Article 112 of the Criminal Code, in order to then advise the Cabinet in line with Article 19 (3) of the Law Reform Commission Act of 2010.

Point # 3

The Judicial System and Detainees and Defendants - The Treatment of Victims After the 19 September 2006 Coup

Thailand fell into a situation of continual political conflict due to the 19 September 2006 coup. There were demonstrations by various sides. There was the use of violence. There were people who were accused of wrongdoing. There were people who were suffered losses: life, injury, and property. In order for each side to achieve justice and to mitigate the losses of the people, the Khana Nitirat proposes that the following concrete and urgent actions be taken:

  1. The Khana Nitirat disagrees with the promulgation of an amnesty law passed with a hidden goal of ending the process of examining the truth about the violent incidents which have occurred.

    However, the rights of those accused of committing politically-motivated offences or offences in which a political issue comprises a significant part, must be granted bail in accordance with the due process. This must be done in a manner that is not different from the process of granting bail to those accused of committing ordinary offences. The right to temporary release must be rigorously and objectively examined. When bail or a guarantee is demanded, it must not be in excess of what the situation mandates. These processes should follow the conditions outlined in the final section of Article 110 of the Criminal Procedure Code, which is in line with the principle of the presumption of innocence.

    Until there is a final judgment against a person that the person has committed an offence, he or she should be treated as a person who is innocent, as guaranteed by Article 39[7] of the Constitution.

  2. Based on the principle of liability of the state, the Khana Nitirat proposes that the Cabinet consider issuing a Cabinet resolution in order to offer help or compensation to all victims, without discrimination, of incidents of political conflict arising since the 19 September 2006 coup. This may be done by establishing a committee with this express responsibility. The rules, methods, and amount of compensation of this committee could come from already-existing law, such as the Compensation for Victims of Crime Act of 2001 and the Assistance to Victims Affected During Government, National, or Humanitarian Service Act of 2000, etc. Accepting the aforementioned compensation will not foreclose the rights of victims to access benefits in line with other laws.

  3. The Khana Nitirat propose that the National Human Rights Commission monitor the actions or inactions which result in violations of the human rights of detainees and defendants, which may be perpetrated by various entities in the criminal justice process, in order to propose revised standards to solve the problems of violations of human rights in accordance with Article 28 of the National Human Rights Commission Act of 1999.

Point # 4

Nullify the 2007 Constitution and Prepare a New One

The 2007 Constitution is a resultant effect of the 19 September 2006 coup and therefore lacks democratic legitimacy. Even though the aforementioned Constitution was passed in a referendum, the process of drafting the Constitution and the process by which the referendum was organized was not in line with the principles of democracy.

  1. The Khana Nitirat proposes that the Cabinet should propose the drafting of a revised Constitution (“Category 16, Prepare a New Constitution”).

  2. The Khana Nitirat observes that the Constitutions which are appropriate for use as prototypes for a new one and guidelines in drafting include the 1932 Temporary Constitutional Charter for the Administration of Siam Act[8], the 1932 Constitution of Siam[9], the 1946 Constitution of Thailand[10], and also perhaps parts of the 1997 Constitution of Thailand[11] with reference to the protection of rights and freedom, as well as the framework of political institutions and Constitutional organizations that are consistent with developments in the contemporary period.

  3. In order to not allow the coup to destroy the principles that form the foundation of the rule of law and democracy, the Khana Nitirat proposes to prepare a “Declaration of the Fundamental Value of Liberal Democracy”. Even though the declaration will not have the status of law, the declaration will represent the spirit of a liberal democratic system which cannot be destroyed or made to disappear by any individual or method.

  4. The “Declaration of the Fundamental Value of Liberal Democracy” will maintain that all humans are born free and equal in dignity and rights.

    It will maintain that the highest authority belongs to the people.

    This cannot be taken away from the people by anyone or any method.

    The state’s fundamental value comes from rule by law that is impartial.

    The sharing of power is the organizing principle of rule that must always be securely maintained.

  5. After the Constitutional Drafting Assembly agrees on a draft Constitution, it should be then approved by a referendum vote.

Worachet Pakeerut
Jantajira Iammayura
Thapanan Nipithakul
Teera Suteewarangkurn
Sawatree Suksri
Piyabutr Saengkanokkul
Poonthep Sirinupong

Notes

[1]Section 36. All announcements and orders of the Council for Democratic Reform or order of the Chairperson of the Council for Democratic Reform which had been announced or made on 19th September B.E. 2549 (2006) until the promulgation date of this Constitution, irrespective of their manner or form and irrespective of their legislative, executive or judicial force, shall continue to be in force, and those announcements or orders, including the acts performed in compliance therewith, whether before or after the promulgation Reform are legal date of this Constitution, shall be considered lawful and constitutional.
[2]Section 37. All acts performed on account of the seizure and control of State governing power on 19th September B.E. 2549 (2006) of the Chairperson of the Council for Democratic Refom are for Democratic Reform, including all acts of persons incidental to such performance or of persons entrusted by the Chairperson or the Council for Democratic Reform or of persons ordered by persons entrusted by the Chairperson or the Council for Democratic Reform whereby such acts have been done for the benefit of the above mentioned performance; irrespective of their legislative, executive or judicial force as well as punishments and other official administrative acts and irrespective of whether those acts have been done as a principal, abettor, agent provocateur or commission agent and whether those acts have been done on, before or after the aforesaid date, if those acts are offenses under the laws, the persons who commit those acts shall be entirely discharged from such offenses and liabilities.
[3]The Assets Examination Committee was only in existence for one year, as mandated by Declaration # 30 of the CDRM, issued on 30 September 2006. At the end of its term, its responsibilities were transferred to the National Anti-Corruption Commission, the Anti-Money Laundering Office, and the Office of the Auditor General. --Translator
[4]“Whoever defames, insults or threatens the King, Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years.”
[5]Proposed amendments to the lese majeste law in Thailand (pdf)
[6]

Section 29. The restriction of such rights and liberties as recognised by the Constitution shall not be imposed on a person except by virtue of provisions of the law specifically enacted for the purpose determined by this Constitution and to the extent of necessity and provided that it shall not affect the essential substances of such rights and liberties.

The law under paragraph one shall be of general application and shall not be intended to apply to any particular case or person; provided that the provision of the Constitution authorising its enactment shall also be mentioned therein. The provisions of paragraph one and paragraph two shall also apply mutatis mutandis to by-laws issued by virtue of provisions of law.

[7]

Section 39. No person shall be inflicted with a criminal punishment unless he or she has committed an act which the law in force at the time of commission provides to be an offence and imposes a punishment therefor, and the punishment to be inflicted on such person shall not be heavier than that provided by the law in force at the time of the commission of the offence.

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.

[8]Provisional Constitution of 1932
[9]'Permanent' Constitution of 1932
[10]Constitution of 1946
[11]Constitution of 1997, Chapter 3