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Dangerous lack of clarity from the Constitutional Court

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On Sunday, Prachatai reported that the Constitutional Court issued a statement regarding the complaint filed by Somyos Prueksakasemsuk’s lawyer on the issue of whether or not being charged under Article 112 of the Thai Criminal Code violated the 2007 Constitution. As a likely-not-needed reminder for most readers, Article 112 is the measure in the Criminal Code that describes the alleged crime of lèse majesté and prescribes punishments for it: “Whoever defames, insults or threatens the King, Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years” ["ผู้ใดหมิ่นประมาท ดูหมิ่น หรือแสดงความอาฆาตมาดร้ายพระมหากษัตริย์ พระราชินี รัชทายาท หรือผู้สำเร็จ ราชการแทนพระองค์ ต้องระวางโทษจำคุกตั้งแต่สามปีถึงสิบห้าปี"]. Rather than being considered categorized as part of the Code which deals with defamation of non-royal individuals, Article 112 is part of the section which deals with crimes against national security. This both creates the context for the lengthy punishments possible for alleged violations of the law, as well as makes it possible to deny bail to defendants and close trials to the public, as occurred in the case of Daranee Charnchoengsilpakul in 2009. On 24 April 2012, Somyos’s lawyer submitted a complaint to the Constitutional Court on whether or not the categorization of lesè majesté as a crime of national security was in violation of the rule of law as outlined in the Constitution. The complaint dealt with two specific sections of the Constitution: the second paragraph of Section 3 and Section 29.[1]

Section 3 (entire section quoted, relevant paragraph bolded) mandates:

“The sovereign power belongs to the Thai people. The King as Head of the State shall exercise such power through the National Assembly, the Council of Ministers and the Courts in accordance with the provisions of this Constitution.

The performance of duties of the National Assembly, the Council of Ministers, the Courts, and the constitutional organs as well as State agencies shall be under the Rule of Law.”

Section 29 mandates:

“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.”

Although I have not read the submitted complaint and so cannot comment on the logic offered by Somyos’s lawyer, what I would note is Somyos’s case as well as the many other cases prosecuted under Article 112 raise important questions about the rule of law and rights and liberties guaranteed by the Constitution. The repeated denials of bail, during the period before being charged and while trials are ongoing, are alone a cause for serious reflection and query.

Apparently the Constitutional Court does not share my concern. Less than a month after the submission of the complaint, on 18 May 2012, the Constitutional Court made public their decision not to accept this complaint for examination. Buried in a statement dealing with several cases, the Court explained their logic as follows:

“Although the Constitutional Court was asked to consider if various laws were contrary to or inconsistent with the Constitution, the complainant did not use his right to use other means, and therefore the complaint is not in line with Section 212 of the Constitution. Section 21 of the Organic Act on the Procedure of the Constitutional Court notes these principles: (1) [the complainant] must be an individual whose Constitutionally-protected rights or liberties have been violated by the law; (2) the complaint must ask the Constitutional Court to consider whether or not a law is contrary to or inconsistent with the Constitution; and (3) must be a case in which it is not possible for [the complainant] to use the right to use other means of examination. Therefore, there is an order not to accept these complaints for consideration.”

[“แม้จะขอให้ศาลรัฐธรรมนูญวินิจฉัยว่าบทบัญญัติแห่งกฎหมายใดขัดหรือแย้งต่อรัฐธรรมนูญ แต่ผู้ร้องยังมิได้ใช้สิทธิโดยวิธีการอื่น คำร้องจึงไม่เป็นไปตามรัฐธรรมนูญ มาตรา 212 ประกอบข้อกำหนดศาลรัฐธรรมนูญว่าด้วยวิธีพิจารณาและการทำคำวินิจฉัย พ.ศ.2550 ข้อ 21 ซึ่งมีหลักเกณฑ์ว่า (1) ต้องเป็นบุคคลที่ถูกละเมิดสิทธิหรือเสรีภาพตามที่รัฐธรรมนูญนี้ รับรองไว้ อันเนื่องมาจากบทบัญญัติแห่งกฎหมาย (2) คำร้องขอให้ศาลรัฐธรรมนูญวินิจฉัยว่า บทบัญญัติแห่งกฎหมายนั้นขัดหรือแย้งต่อรัฐธรรมนูญ (3) ต้องเป็นกรณีที่ไม่อาจใช้สิทธิโดย วิธีการอื่นได้แล้ว จึงมีคำสั่งไม่รับคำร้องไว้พิจารณาวินิจฉัย”]

On the one hand, this short paragraph is very clear. Given that in this case, we know that principle (2) of Section 2 is not the problem as the complaint dealt with a specific law and specific sections of the Constitution, then the Court believes that the conditions in either (1) and/or (3) have not been met. Yet upon examination of both Section 212 of the 2007 Constitution and Section 21 of the Organic Act on the Procedure of the Constitutional Court (OAPCC), this short paragraph becomes strikingly inadequate and what is at stake in both (1) and (3) becomes much clearer.

Section 212 of the 2007 Constitution mandates:

“A person whose rights or liberties recognised by this Constitution are violated has the right to file a motion to the Court for a decision that a provision of law is contrary to or inconsistent with the Constitution.

The right under paragraph one shall be exercisable in the case where all other means for the exercise thereof are exhausted, as provided in the Organic Act on the Procedure of the Constitutional Court.”

Section 21 of the OAPCC [ข้อกำหนดศาลรัฐธรรมนูญว่าด้วยวิธีพิจารณาและการทำคำวินิจฉัยพ.ศ. ๒๕๕๐] mandates:

“Individuals whose Constitutionally-protected rights and liberties are violated have the right to file a complaint to the Court for the consideration of whether or not the law is contrary to or inconsistent with the Constitution.

The use of the right in the first paragraph must be in a case in which it is not possible for [the complainant] to use the right to use other means, in line with Section 211, Section 245 (1) and Section 257, Paragraph 1 (2) of the Constitution.”

[“บุคคลซึ่งถูกละเมิดสิทธิหรือเสรีภาพที่รัฐธรรมนูญรับรองไว้มีสิทธิยื่นคำร้องต่อศาลเพื่อมีคำวินิจฉัยว่าบทบัญญัติแห่งกฎหมายขัดหรือแย้งต่อรัฐธรรมนูญได้ การใช้สิทธิตามวรรคหนึ่งต้องเป็นกรณีที่ไม่อาจใช้สิทธิโดยวิธีการอื่นได้แล้ว ทั้งนี้ ตามมาตรา ๒๑๑ มาตรา ๒๔๕ (๑) และมาตรา ๒๕๗ วรรคหนึ่ง (๒) ของรัฐธรรมนูญ”]

Now I return to the Constitution, and working numerically backwards for reasons of analysis which will become clear, consider the implications of each of the sections mentioned in the OAPCC with respect to this case, which deal with the involvement of the lower Court, the Ombudsman, and the National Human Rights Commission in referring cases to the Constitutional Court.

Section 257(2) mandates:

“The National Human Rights Commission has the powers and duties as follows: (2) to refer the matter, together with an opinion, to the Constitutional Court in the case where it agrees with a complaint addressed by a complainant that any provision of law affects human rights and begs a question of constitutionality, in accordance with the Organic Act on Procedure of the Constitutional Court”

Section 245(1) mandates:

“An Ombudsman may refer the matter to the Constitutional Court or the Administrative Court when the Ombudsman considers that any of the following circumstances occurs:

(1) any provisions of law begs the question of constitutionality, in which case the matter shall be referred, together with the opinion of the Ombudsman, to the Constitutional Court and the Constitutional Court shall consider and decide it without delay, in accordance with the Organic Act on Procedure of the Constitutional Court.”

Neither the Ombudsman nor the National Human Rights Commission has been involved in this, or in most, if not all lèse majesté cases. Here I would simply ask why not? Why is it that they do not see these cases, and the violations of the rights of those charged under Article 112 and its sister law, the 2007 Computer Crimes Act, as cases which fall into their mandate.

Finally, Section 211 of the Constitution mandates:

“In the application of the provisions of any law to any case, if the Court by itself is of the opinion that, or a party to the case raises a reasoned objection that, the provisions of such law fall within the provisions of section 6 and there has not yet been a decision of the Constitutional Court on such provisions, the Court shall submit such opinion, in the course of official service, to the Constitutional Court for consideration and decision. In the meantime, the Court may proceed with the trial but shall stay its adjudication for the time being until a decision of the Constitutional Court has been delivered.

In the case where the Constitutional Court is of the opinion that the objection of a party under paragraph one is not so essential as to warrant a decision, the Constitutional Court may refuse to accept the case for consideration.

The decision of the Constitutional Court shall apply to all cases but shall have no prejudice to final judgments of the Courts.”

In this case, the defendant and his lawyer submitted the complaint, not the lower Court. If the condition in Section 211 has not been met, does this mean that the Constitutional Court has concluded that, as noted in the next-to-final paragraph of this section, that “the objection of a party under paragraph one is not so essential as to warrant a decision”? What could be less essential than the examination of the violations of the rights and liberties of Somyos and an exponentially growing number of people accused under Article 112, from 33 complaints filed in 2005 to 478 in 2010?

What I have done in this essay is to move from the short, unclear paragraph offered by the Constitutional Court through the relevant laws mentioned in order to raise questions about their decision not to examine the complaint submitted by Somyos Prueksakasemsuk’s lawyer. But a note: I am not a Constitutional Court judge, nor am I privy to their conversations, so perhaps my critique is too harsh. Perhaps they spend their days and nights worrying about how to more effectively safeguard the rights and liberties of the citizens, who, according to the Constitution they serve and protect, hold the sovereign power in the land. I certainly hope this is the case.

Elizabeth Fitzgerald is the pen name of an observer of Thai politics and history. She can be reached at lizziefitzy@gmail.com. Should a reader have a copy of the complaint submitted to the Constitutional Court in this case, she would be both excited to read it and happy to write about it further.

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