INTERIM CONSTITUTION PROTECTIONS FOR CIVIL

C O N F I D E N T I A L SECTION 01 OF 02 BANGKOK 006119

SIPDIS

SIPDIS

E.O. 12958: DECL: 10/03/2016
TAGS: PGOV PHUM KDEM KJUS TH
SUBJECT: INTERIM CONSTITUTION PROTECTIONS FOR CIVIL
LIBERTIES


Classified By: CDA Alexander A. Arvizu, reason 1.4 (b) (d)


1. (C) SUMMARY: One of the drafters of the interim
constitution explained the mechanisms contained in the
document for protecting civil liberties. He said language in
the interim constitution, although perhaps appearing vague to
Westerners, does clearly incorporate by reference the rights
guaranteed under previous charters. He also emphasized the
value of the newly created Constitutional Tribunal. This is
the first time such provisions have been included in an
interim constitution. Our contact explained that the
restrictions on political activity which remain in effect
should be lifted once martial law ends. END SUMMARY.


2. (C) Polcouns met October 4 with Borwornsak Uwanno, one of
the drafters of the interim constitution. Borwornsak
provided useful background information on the provisions of
the interim constitution, especially concerning protection of
human rights.


3. (C) Polcouns noted that Thai officials have said the
interim constitution contains strong civil liberties
protections, and that Article 3 incorporates by reference all
the protections in the 1997 Constitution. However, some Thai
critics raised concerns about the text, and it also appeared
to us to be relatively weak (for text of relevant article,
see para 7). Borwornsak explained that the wording of Article
3 guaranteed the rights and liberties of the people, "which
have always been enjoyed by the Thai people in accordance
with the customary practice of democratic government with the
King as the Head of State;" he said that this phrase had
specific legal meaning in Thai jurisprudence. According to a
court decision from 1994, this language did in fact legally
incorporate the rights guaranteed under previous
constitutions into the interim charter. Borwornsak also
pointed out that the article further states that the rights
guaranteed under Thailand's existing international
obligations are also protected by the interim constitution.
According to Borwornsak, this means that the provisions of
international human rights agreements to which Thailand is a
party are automatically enforceable in Thai court (without
requiring the interim step of being enacted into Thai law, as
was the case under previous Thai law.)


4. (C) We pointed out that, although guarantees are
important, the rights had to be respected and enforced.
Borwornsak said that this interim constitution, unlike all
previous ones, establishes a Constitutional Tribunal (Article
35) This Tribunal is composed of the Presidents of the
Supreme Court and the Supreme Administrative Court, as well
as judges from both courts. This Tribunal is empowered to
adjudicate whether any law is in contravention of the
provisions of the interim constitution.


5. (C) Finally, we asked how to square the differences
between the guarantees for civil liberties he outlined, and
the provisions of Article 36, which states that all the
orders of the CDR remain in force. These orders included
restrictions on civil liberties such as prohibiting five or
more people from meeting for a political purpose, and limits
on political party activity. Borwornsak said that these
restrictions were connected to the continued state of martial
law. Once martial law was lifted, he said, there would be no
basis for those restrictions. He encouraged the USG to urge
the new government to lift martial law as soon as possible.
In his opinion, he said, there was no longer any need for
martial law, as the danger of a counter-coup by Thaksin
supporters was no longer serious.


6. (C) Comment: We are encouraged by the explanation
Borwornsak provided on the protections for civil liberties in
the interim constitution. Enforcement is obviously the key.
In addition, given some of the bad press the interim charter
got when it was first released, it would be smart for the new
government to reassure the international community -- not to
mention Thai citizens -- that human rights are still
guaranteed and that there is a court empowered to review the
laws passed during this interval to be sure that they conform
to the government's commitments. Regarding the danger of a
counter-coup, signals emanating from the Council on National
Security and the new government suggest some skittishness
about lifting martial law too soon. Continuing fear that
Thaksin is still plotting something will be a factor driving

BANGKOK 00006119 002 OF 002


the new government's decisions. End comment.

TEXT OF ARTICLE 3
--------------


7. (U) "Subject to the provision of this Constitution, the
human dignity, rights, liberties and equality, which have
always been enjoyed by the Thai people in accordance with the
customary practice of democratic government with the King as
Head of State as well as Thailand's existing international
obligations, shall be protected acording to this
Constitution."
ARVIZU