That was the week that was, beginning on May 14, 2023, Thailand's monumental and momentous national election day. The results of the election were historically in favour of democratic change, with the Move Forward Party (MFP) gaining the most seats in the Lower House. It is leading a coalition of parties, aspiring to form the next government and winning over 310 seats in total, despite shenanigans from arch-conservatives.
By the end of the week, two other key developments had taken place. The Constitutional Court invalidated an executive decree which had purported to suspend the application of significant provisions of the new law against torture. On another front, the Juvenile Court granted bail release of a minor in relation to a lese majeste case.
In a way, all those developments are interlinked and they concern the issue of the legitimacy of people-based power versus the illegitimacy of abuse of power premised on superimposition.
The reason why the results of the election are so catalytic is that they project a new vision for the country and rejection of a system imposed by recurrent coups, prolonged by the current coup-based 2017 constitution -- the 20th charter, with intentional intricacies entrenched in that instrument to obstruct civilian rule anchored in the electoral mandate. There is an inevitable interface between the 500 seats in the lower house and the 250 seats in the Senate, 750 seats in total as the national parliament.
An obvious intricacy is the constitutional provision that an aspiring prime minister, now from the MFP, must gain at least 376 votes from the Lower House and the Senate on a bicameral basis to be anointed as prime minister. That provision was inserted in the constitution to make it extremely difficult for one party or even a coalition to submit its candidate to be prime minister unless parts of the coup-appointed Senate agree to the candidacy.
If and when a new constitution is drafted, this and other obstructive provisions will need to be excised to enable representative democracy to have its candidate legitimised as the head of the executive branch of government like in other democracies, not conditioned by an unelected Upper House.
The issues emerging from the platform interlinking between the members of the political coalition are of note: reform of the constitution, end of military conscription, elections of governors in the provinces, an amnesty for political activists, more social protection measures and economic stimulus. Reform of the lese majeste law based on Section 112 of the Criminal Code and institutional recalibration remain sensitive areas which invite mutual respect and calm dialogue, based on rational and astute options.
In substantive terms, the sensitive issue is not only about Section 112 but also other less than democratic laws such as the Computer Crimes Act, the national emergency decree and other constraining laws such as the Public Assembly Law and on the use of loudspeakers. For example, decades of imprisonment have at times been meted out to persons prosecuted under that section, multiplied by other sanctions from the computer crimes law.
The current situation is that anyone (even a coup maker!) can invoke Section 112 against anyone else, even though the preferred approach under the international rule of law is that only the affected party or institution should be able to invoke it.
The intricacy here is the equivalent to "actio popularis", namely, anyone can invoke it even though not directly affected. For reasoned discourse, the next step for adjusting the law is to streamline the possibility of the claim itself and ensure that it is based on another Rule of Law principle: "locus standi". Only the damaged party should be able to invoke a legal provision legitimately to make a claim for redress.
Another concern is the sanction that ensues from the provision. Imprisonment starts at three years and can be extended to 15 years per count. Internationally, the lack of discretion for the judiciary to impose a lesser sentence is known as mandatory sentencing. In future, the needed adjustment is that the judiciary should have the option of not imposing a prison sentence at all. Since the issue is related to criminal defamation, future orientation should also reflect the international trend. There should be no criminal defamation. The legitimate approach is civil defamation whereby the award of damages and not imprisonment would be the preferred remedy.
On another front, the welcome news is that the country's anti-torture law is now fully applicable.
The provisions suspended by the now invalidated executive decree were Sections 22 to 25 of the law which compelled law enforcers to video and record the questioning of suspects from the time of arrest and also to document details of the person's treatment and well-being.
Law enforcers already have some of the technology to respond to the stipulations, despite complaints of a shortage of cameras and other machinery. It is important to enable understanding among law enforcers that the transparency ensuing from the preferred practices is beneficial not only for arrested persons but also for law enforcers, as this helps to prove their compliance with legitimate methods of dealing with suspects and the innocence of the law enforcers themselves.
With regard to the recent release of the minor subject to bail conditions, it hardly needs to be repeated that lese majeste and other criminal laws should not be utilised against children. Instead of incriminating the expression of their discontent, a better approach is to address the root causes of their sense of frustration and alienation.
Research on their plight, coupled with social assistance, should be promoted, mindful of the family environment, economic/social status and access to education and livelihood opportunities. The legitimate way to deal with children is to respect their rights in accordance with the international treaty to which Thailand is a party: the Convention on the Rights of the Child.
The past week has thus been a beginning which opens the door to reflection and self-reflection. Perhaps, even for remorse and redemption for those who are more benign.
Constructive sharing of wisdom, with positive signal from the upper echelons of power, respectful of democratic legitimacy, would thus be welcome.
Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University. He has helped the UN as UN Special Rapporteur, Independent Expert and member of UN Commissions of Inquiry on Human Rights.
