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The Thai Constitution of 1997: A study on Protection Rights and Liberties By Kriengkrai Charoenthanavat (1)
Introduction
From 1932 to present, Thailand has had sixteen Constitutions promulgated. The current Constitution, ascribed the name Popular Constitution was promulgated in 1997. It is the product of the political reform, started in 1992, which led to the amendment of the fifteenth Constitution. The amendment concerned the preparation of a new Constitution by supporting the public participation in drafting the new Constitution. Regarding to the public participation, the Constituent Assembly was set up and made of ninety-nine members; it was composed of two types of members. The first one, composing seventy-six members, was elected by the National Assembly from candidates for each province. The other, composing twenty-two members, was chosen by the Parliament from experts and persons experienced in various fields, nominated by State-owned higher education institutes. The Constituent Assembly was to conduct a survey of public opinion through hearings and was to finalise a draft for presentation to Parliament within 240 days.
Finally, the draft Constitution was completed and a prerequisite public hearing was held and afterward it was submitted to the Parliament for approval. If Parliament voted short of a majority, a public referendum would be held. At last, the draft was approved by the Parliament and was promulgated on 11 October 1997.
The spirit of the Constitution of 1997 was expressly presented in the Preamble
the Constituent Assembly prepared the draft Constitution with the essential substance lying in additionally promoting and protecting rights and liberties of the people, providing for public participation in the governance and inspecting the exercise of State power as well as improving a political structure to achieve more efficiency and stability, having particular regard to public opinions
According to the above expression, the Constituent Assembly had to prepare the draft of the Constitution under the three crucial elements. These three important elements are known as the notions of Constitutionalism, and one of them is the protection of fundamental rights and liberties of people.
Regarding to protection of civic rights and liberties, the Constitution of 1997 is the only Thai Constitution which has enumerated a number of provisions concerning civic rights and liberties much greater than those of the others. These provisions turn government by politicians to government by the people However, these do not ensure that civic rights and liberties will not be violated by the State power(2) .Moreover, there are too many undemocratic laws which give the non-respect by the authorities to the civic rights and liberties. At present, the role of civil-society in Thailand is strengthened gradually to control and to examine the State power, especially in cases of violation of civic rights and liberties by the authorities.
Protection of Fundamental Rights and Liberties of People under the Constitution of 1997
The current Constitution of Thailand has stipulated the protection of civic rights and liberties in chapter III, Rights and Liberties of the Thai People, and in chapter VIII, The Courts, which is composed fifty-one sections. This Constitution recognized more rights and liberties than any other prior Constitution of Thailand. Considering the provisions regarding to the protection of rights and liberties, we can classify them into five categories. Of significance are the followings:
A. Including many new rights and liberties As mentioned above, this Constitution is the only one which has provisions concerning the protection rights and liberties much more than any other previous Constitution had. Under these provisions, we found that the Convention tried to protect rights and liberties completely as he could do at that time. However, although the Constitution does not separate the protection of human rights from the protection of civic rights and liberties, we consider that both of them are recognized by the Constitution. We can classify the protection of rights and liberties as the followings.
1. Protection of human rights There is a group of principles on the protection of rights and liberties in this Constitution. They are the clauses on the rights and liberties of natural of person. Consequently, the State can not deny and violate these rights and liberties, and must recognize them in the Constitution; they are so called Human Rights. Among these are the following:
-Human dignity- Human dignity is a fundamental basis of human rights. The concept of human dignity embodies two important aspects. First, it means the very human nature and the second aspect is the moral values and principles. The prior Constitutions of Thailand had never recognized the human dignity in them but the present Constitution (1997) has expressly recognized it in Sections 4, 26 and 28. The Constitution of 1997 clearly makes a distinction between human dignity and other rights and liberties also recognized in the Constitution. According to the spirit of Thai Constitution, human dignity is the fundamental basis of rights and liberties and in the exercise of its power no violation by State is permitted. Protection of human dignity, rights and liberties of the people is stipulated in Section 4 The human dignity, right and liberty of the people shall be protected. Therefore, one can deduce that any person, irrespective of his or her nationality, can equally invoke human dignity, rights and liberties enshrined in the Constitution as the basis of his or her rights, in particular those rights and liberties which form part of human rights. Nevertheless, a person who is not a Thai citizen cannot invoke certain rights and liberties which are considered to be civil and political rights.
Moreover, the Constitution stipulate in Section 26 In exercising powers of all State authorities, regard shall be had to human dignity, rights and liberties in accordance with the provisions of this Constitution. Regarding to this Section, we consider that the Convention wish all of the States authorities shall, in exercising their power, respect human dignity, rights and liberties of the people. In Section 28 para 2 provide that A person whose rights and liberties recognized by this Constitution are violated can invoke the provisions of this Constitution to bring a lawsuit or to defend himself or herself in the court Consequently, if the States authorities does not respect human dignity, rights and liberties of the people, the States authorities can be brought before the court. In addition, as human dignity is equally protected, a person can also invoke the same provision to defend his human dignity before the court too.
-Liberty of the person- The recognition of the liberty of the person in the Constitution of 1997 has more provisions than any other prior Constitution of the country ever had, especially rights and liberties of person under a criminal case and in a criminal procedure which is recognized seperately in Chapter VIII The Courts. Moreover, we find the recognition of the liberty of the person in Chapter III Rights and liberties of the Thai People. The recognition of the liberty of the person is clearly reflected in the present Constitution as follows:
1. Section 31 provides that a person shall enjoy the right and liberty in his or her life and person. A torture, brutal act, or punishment by a cruel or inhumane means shall not be permitted. Moreover, no arrest, detention or search of person or act affecting the liberty shall be made except by virtue of the law. The notion of prohibitation of a torture, brutal act and a cruel punishment is recognized for the first time in the history of Constitution of Thailand. Regarding the punishment of death by penalty, it still exists in the country, if it is provided by law, and it shall not be deemd to be the punishment by a cruel or inhumane manner.
2. Section 237 provides that in criminal case, arrest and detention of a person may be made where an order or a warrant of the Court is obtained, or where such person commits a flagrant offense or where there is such other necessity for an arrest without warrant as provided by law. In the past, an order or a warrant was made by the official and the Court and in practice, most of the warrants of arrest were made by the superior administrative or police official by claim that an alleged offender is not within the jurisdiction of the Court in order to evade scrutinization of the Court. This condition is imposed by Section 58 of the Criminal Procedure Code(3) . Consequently, the order or the warrant made by the official was out of control and verification and brought to the violation of the rights and liberties of person and afterwards the corruption. This caused the current Constitution to impose that in principle an order or a warrant must only be made by the Court.
3.Section 237 imposes that the arrested person shall, without delay, be notified of the charge and details of such arrest and shall be given an opportunity to inform, at the earliest convenience, his or her relative, or the person of his or her confidence, of the arrest. This is the new right of the arrested person in Thailand to guarantee his or her liberty of communication and preparation to defend himself or herself before the procedure.
4. The arrested person being kept in custody shall be sent to the Court within forty eight hours as from the time of his or her arrival at the office of the inquiry official in order for the court to consider whether there is a reasonable ground under the law for the detention of the arrested person or not, except for the case of force majeure or any other unavoidable necessity as provided by law.
5. Section 238 provide that in a criminal case, a search in a private place shall not be made except where an order or a warrant of the Court is obtained or there is a reasonable ground to search without an order or a warrant of the Court as provided by law. In the past, Section 58 of the Criminal Procedure Code imposes that the Court, a superior administrative or police official competent for issuing a warrant of search. There are cases which some officials issue the warrant of arrest in violation of rights and liberties of people. That caused why this current Constitution to impose that the Court is the only organ who has the authority of issuing the warrant of search.
6. Section 241 para 1 provides that in a criminal case, the suspect or the accused has the right to a speedy, continuous and fair inquiry or trial. It is the first time that Thai Constitution imposes the measure of continuous inquiry or trial. In the past, the criminal procedure in a case could take a long time and the suspect or the accused could be kept in custody or detained under the warrant of detention without bail. This is not justifiable for the suspect or the accused.
7. Section 241 para 2 impose that at the inquiry stage, the suspect has the right to have an advocate or a person of his or her confidence attend and listen to interrogations. This right of the suspect is a guarantee that no inquiry official shall make any deception, threat, or promise to any alleged offender inducing the suspect to make any particular statement concerning the charge against him. Consequently, the notes of the proceedings of inquiry are legally correct and are accepted as the evidence.
8. Section 241 para 3 provides that an injured person or the accused in a criminal case has the right to inspect or require a copy of his or her statements made during the inquiry or documents pertaining thereto when the public prosecutor has taken prosecution as provided by law.
9. Section 241 para 4 provides that in a criminal case for which the public prosecutor issues a final non-prosecution order, an injured person, the suspect or an interested person has the right to know a summary of evidence together with the opinion of the inquiry official and the public prosecutor with respect to the making of the order for the case, as provided by law. This measure has a purpose for examining and controlling transparently the exercise of power of the officials in a final non-prosecution order.
10. Moreover, Section 242 imposes that in a criminal case, the suspect or the accused has the right to receive an aid from the State by providing an advocate as provided by law. In the case where a person being kept in custody or detained cannot find an advocate, the State shall render assistance by providing an advocate without delay. In a civil case, a person has the right to receive a legal aid from the State, as provided by law.
11. Section 244 provides that in a criminal case, a witness has the right to protection, proper treatment, necessary and appropriate per diem from the State as provided by law. In the past, a witness in criminal case risked his or her life to be witness, so no one dared to be witness in criminal case because there was no law and no system of protection. At present, we have Protection of witness in Criminal Case Act promulgated in 2003.
12. Section 245 provides that in a criminal case, an injured person has the right to protection, proper treatment and necessary and appropriate per diem from the State, as provided by law.
13. Section 245 para 2 provides that in the case where any person suffers an injury to the life, body or mind on account of the commission of a criminal offense by other person without the injured person participating in such commission and the injured cannot be remedied by other means, such person or his or her heir has the right to receive an aid from the State, upon the condition and in the manner provided by law. This is the first time that thai Constitution accepts the right of the descendant of the injured person to receive the aid instead of the injured person who does not have an opportunity to receive it. The recognition of this right comes from the notion of Social aid and the notion of State responsibility.
14.Section 246 imposes that any person who has become an accused in a criminal case and has been detained during the trial shall, if it appears from the final judgement of that case that the accused did not commit the offence or the act of the accused does not constitute an offence, be entitled to appropriate compensation, expenses and the recovery of any right lost on account of that incident, upon the conditions and in the manner provided by law.
-Liberty of conscience- This recognition gives the respect to the notion of Natural law by recognizing that the human-conscience is the natural right and natural liberty of human-being which the State cannot ignore and violate it. In current Constitution, we see this recognition in Section 38 para1 which provides that a person shall enjoy full liberty to profess a religion, a religious sect or creed, and observe religious precepts or exercise a form of worship in accordance with his or her belief ; provided that it is not contrary to his or her civic duties, public order or good morals.
-Protection of Childrens Right- In Section 53 imposes that Children, youth and family members shall have the right to be protected by the State against violence and unfair treatment. Moreover, the children and the youth with no guardian shall have the right to receive care and education from the State, as provided by law.
2. Civil rights The recognition of civil rights is based on the hypothesis that a person who has the nationality of that State may enjoy the civil rights provided by the Constitution. The current Constitution of Thailand prescribes the provisions about the civil rights as followings :
-Liberty of expression- In regard to liberty of expression and liberty of the press, this present Constitution stated that news or opinions presented by private employees who work for a newspaper business or a television or radio broadcasting business shall not be under mandate of both official authority and the business owners. Moreover, it stated that transmission frequencies for radio or television broadcasting and radio communication are national communication resources for public interest and there is an independent regulatory body having the duty to distribute the frequencies and supervise radio or television broadcasting and telecommunication businesses as provided by law.
-Academic freedom and the right of the fundamental education- The recognition of academic freedom is provided in Section 42 para1of the present Constitution. It stated that a person shall enjoy an academic freedom and it is protected; provided that it is not contrary to the civic duties or good morals. Regarding to the right of the fundamental education, Section 43 provided that a person shall enjoy an equal right to receive the fundamental education for the duration of not less than twelve years which shall be provided by the State thoroughly, up to the quality, and without charge.
-The right of local people- It is the new right which it had never been existed in our country. But the present Constitution imposes it in Section 46 ; this recognition comes from the notion of assembling as to be a traditional community not juristic person to conserve and restore their own customs, local knowledge, art or good culture of their community and of the nation. The traditional community may participate in the management, maintenance, preservation and exploitation of natural resources and the environment in a balanced fashion and persistently.
-The right to receive standard public health- Section 52 provides that shall enjoy an equal right to receive standard public health service, and the indigent shall have the right to receive free medical treatment from public health centres of the State
-The right of disadvantageous person- The current Constitution has the provisions concerning disadvantageous person as followings: Section 53 para 2 the right of children to receive care and education from the State, Section 54 the right of person over 60 years of age to receive assistance from the State, Section 55 the right of disabled or handicapped to receive public conveniences and others aids from the State
-The right to participate in conserving and exploiting natural resources and maintaining the environment- The Constitution of 1974 was the first Constitution which recognized this right, and afterwards no any Constitution recognized it again. At present, the current Constitution guarantees this right in Sections 56 and 59 as followings: the right to participate in conserving and exploiting natural resources and biological diversity and in the protection, promotion and preservation of the quality of the environment, the right to sue a State agency, State enterprise, local government organization or other State authority to perform the duties, the right to receive information, explanation and reason from State agency, State enterprise or local government organization before permission is given for the operation of any project or activity which may affect the quality of the environment, health and sanitary conditions, the quality of life or any other material interest concerning him or her or a local community and have the right to express his or her opinions on such matters in accordance with the public hearing procedure.
-The right of consumer protection- Under Section 57 of this Constitution, an independent body will have to be set up for giving opinions on laws and measures to be introduced for consumer protection and there are representatives of consumers must also be members of such advisory body
-The right to get access to public information- Under Section 58, the Constitution states that a person shall have the right to get access to public information in possession of a State agency, State enterprise or local government organization, unless the disclosure of such information shall affect the security of the State, public safety or interest of other persons which shall be protected.
-The right to participate in the decision-making process of State officials- Under Section 60, this right is given to the person whose rights and liberties are affected by decision-making process of the State officials before they have the decision-making affecting his or her rights and liberties.
-The right to sue a State- Under Section 62,the Constitution gives the right to a person to sue a State agency, State enterprise, local government or other State authority which is a juristic person to be liable for an act or omission done by its Government official, official or employee.
-The right to resist peacefully- Under Section 65 guarantees that a person shall have the right to resist peacefully any act committed for the acquisition of the power to rule the country by a means which is not in accordance with the modes provided in this Constitution.
-Equal rights for all person- This right is one of the most important rights of human-being. All of the Constitutions in the world recognize this right as a fundamental right. In every Thai Constitution, except the interim Constitution, has the provision concerning this right. At present, it is recognized under Section 30 providing that all persons are equal before the law and shall enjoy equal protection under the law. Men and women shall enjoy equal rights. If there is an unjust discrimination against a person on the grounds of the difference in origin, race, language, sex, age, physical or health condition, personal status, economic or social standing, religious belief, education or constitutionally political view, shall not be permitted.
Conclusion
As mentioned above, the Constitution of 1997 enlarges many provisions regarding to rights and liberties of the people and thereby gives protection more than any others Constitution of the country. One of the spirit of this Constitution is protection fundamental rights and liberties of people. This spirit comes from the notion of Constitutionalism which is the western democratic notion and spread to all of the democratic countries in the world. Thailand was known as a democratic country after 1932 but in historical background, two-third of seventy-three years (1932-2005) is under the military dictatorship and under the semi-democratic system. However, nowadays, Thailand is under democratic system, and the recognition of rights and liberties in the Constitution displays that the State takes care of rights and liberties of people. In fact, there are too many situations which rights and liberties of people are violated constantly. These show that the recognition of rights and liberties in the present Constitution does not ensure enforcement and function as it should be. Consequently, it must have the measures to enforce the recognition of rights and liberties and to make them work as required by the spirit of Constitutionalism.
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(1) LL.B,LL.M,(Chulalongkorn University,Thailand), Diplôme d'Etudes Approfondies (Droit Public),Docteur en droit de l'Université (nouveau régime), Mention Trés honorable (l'Université Strasbourg 3, France).
(2) In Thailand, nowadays, there are many critics about the governmental policy concerning the events of the southern of the country which led to the violation of civic rights and liberties, especially the promulgation of the Emergency Decree on Public Administration in Emergency Situation B.E.2548(2005). There are many measures in this Emergency Decree which give much more power to maintain public safety to the Prime Minister. Thai academics, lawyers and politicians are afraid that these measures will bring about the violation of civic rights and liberties by the State power.
(3) This Section was abolished after amending the Crim
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