On May 18, Thailand’s Constitutional Court voted 8 to 1 to strike down the executive decree that delayed the enforcement of key provisions of the Prevention and Suppression of Torture and Enforced Disappearances Act.
It held that the decree was unconstitutional, as it is incompatible with Section 172, paragraph one of the constitution. Therefore, the decree was unenforceable since February 22, when the Act came into force.
This decision comes at a time of political consciousness about this issue: the passage of this law was a rare case of political unity, and the coming into force of this law was considered a milestone for human rights in Thailand. In particular, state-enforced disappearances became an extremely sensitive issue after anti-government activists disappeared under mysterious circumstances: from ethnic human rights activists to lawyers in the deep south, the Thai state has a long and complicated history that still leaves its people without answers. Most recently, Thai pro-democracy Wanchalearm Satsaksit’s abduction in Cambodia in 2020 sparked massive protests against the government.
Here are some key takeaways that we can make from the decision.
Takeaway 1: this decision stands as a testament that checks and balances in the Thai system still (sometimes) works, and we must use it for justice.
This case came after 99 MPs submitted a motion to Chuan Leekpai, the House Speaker, to challenge the executive decree and its dubious rationale for delaying the Act, i.e. the inability to procure necessary equipment because of budgetary reasons.
It is hard to believe in the independence of the Thai judiciary sometimes, with high-profile judicial decisions that seem to favour the establishment such as the dissolution of the Future Forward Party in 2020 on a technicality regarding Thanatorn’s ownership of media shares. Or sometimes, cases emerge where the judge is clearly pressured to decide a certain way by the higher-ups: Judge Kanakorn Pianchana protested against this by famously shooting himself after acquitting five Muslim men of murder because he believed there is a lack of evidence, even though he said he was pressured to convict them.
But this case is a welcomed change, as it challenged an executive decree and struck it down as unconstitutional. This means that, when there is a perceived injustice, we can and must speak out and use the system, both through expressing our thoughts individually and through our MPs. In this case, we must speak out for the victims’ right to fair trial when they simply and mysteriously vanished without a trace. We must speak out for their right to liberty, because it is not right for people like us to suddenly disappear for speaking our thoughts. And even when there is reason to believe those victims may be guilty of a crime, we must still speak out for their rights in the criminal justice system: to be innocent until proven guilty, and to be provided with legal representation. Enforced disappearances, especially those done by the state, violate all these rights.
Takeaway 2: when push comes to shove, bureaucracy is a false excuse for inaction.
This time, the executive degree should never have come into place from the start: this Act was a long time coming and the police knew that it would have passed Parliament, especially in the current political atmosphere. Even if they were unaware of it for some odd reason, there were 120 days between the passing of the Act and its entry of force where the police should have made the necessary arrangements.
As police meetings after the court’s decision shows, they could procure the equipment, and they should have done it long before this instead of making efforts to delay.
Yes, bureaucracy is a complex, slow and arduous system to navigate. But there should have been more efforts to navigate it, especially when the difference between enacting those laws and not is a difference between life and death.
Takeaway 3: there must be sufficient oversight of the police.
When I say that the difference between enacting the provisions of the Act that the executive tried to delay is a difference between life and death, this is not an exaggeration. Police brutality is rampant around the world, and Thailand is no exception. A notorious example is Colonel Thitisan Utthanaphon, or “Joe Ferrari” as he is commonly called due to his infamous collection of sports cars, who ordered the asphixiating of a man under custody allegedly because the man refused to pay 2 million baht for his release in 2022.
Police brutality is enabled in closed doors. If Joe Ferrari was merely initially transferred to another post after the video surfaced, then imagine the kind of systemic impunity that has been happening, or the kind of lives that have been cruelly and casually wasted under police custody.
Not only could the Act’s enforcement be a difference between life and death, it can also bring closure for victims’ families. The video evidence provides necessary accountability, and if the police did everything by the books, then they have nothing to fear in recording their actions.
Police have been given a lot of power, but that power is to keep our communities safe. It is not a blank cheque to kill people or conduct state-enforced disappearances with people that the establishment disagrees with. As the first point of contact for the common people with the criminal justice system, the police must be an institution that is fair, righteous, and protective of the interests of the innocent. If not, people will turn to lawless order over the police, because they believe the police will not help them.
In this regard, we should welcome this court decision. But it is only the beginning: the cameras that are being procured must be used, and the officers being trained must conduct their arrests according to their training. For us, this means that police brutality should not fade from our consciousness just yet.