A key debate this year will be the question of constitutional reform. The current constitution -- the 20th -- is the product of a coup d'etat.
Therefore, it is only natural that with the more democratic platform of today, the political spectrum is ripe for reviewing, revising and/or replacing that basic law of the land as is appropriate and in accordance with the changing times. How then should the constitution be reconfigured?
Most Thai constitutions have been overturned by use of force emanating from a uniformed group disgruntled with the incumbent government. A constitution which ensues from that unsettling situation then becomes an instrument to share power and protect vested interests rather than a social contract to guarantee the rights and freedoms of the population.
Granted that the present governmental administration is at least based upon a democratic process, albeit with constraints and remnants of the previous power base, there is some hope to reshape the relationship between those who rule and those who are ruled.
Interestingly, at the beginning of the text, a key principle inserted into the country's charters, since the 16th constitution (which is considered the most democratic to date), is "human dignity" (per Section 4). The term has been used as a kind of synonym for "human rights". Yet internationally, the notion of "human dignity" is not necessarily the same as "human rights".
For instance, in a famous case in one country, the notion of "human dignity" was used to constrain the exercise of a human right rather than to be its equivalent. In the case concerning "les nains" (dwarves), the judiciary ruled against the claim by a person of the group who was advocating his right to life and physical integrity to be thrown as a ball in a game. The court cited "human dignity" as a matter of public policy to counter the claim of the right mentioned.
In the next phase of constitutional drafting here, it would be better to call a spade a spade; to integrate "human rights" explicitly into the text. The term itself is more concrete than "human dignity", since there are international standards and treaties giving content to "human rights". By contrast, there is no international treaty on "human dignity", and its parameters are less clear.
A prospective constitution should also avoid the heading "Rights and Freedoms of the Thai People", which recurs in Thai constitutions. In retrospect, in the initial draft of the 16th constitution, which subsequently became a charter in 1997, the draft text used the term "rights of persons" without distinction. This would have complemented the international perspective on the subject, but it was overturned by parliament, which chose to revert to the old terminology of "the Thai people".
By contrast, if a constitution is envisioned as an instrument ensuring fairness for all, it should guarantee rights and freedoms for all persons without discrimination and without being limited to the nationals or citizens of that country.
That proposition does not mean that all non-citizens should have the same rights as citizens on all issues. For instance, the right to vote in national elections is generally accepted as a right of citizens. However, the protection of basic rights and freedoms, such as the right to access the courts and equality before the law, should be inherent to all persons and guaranteed accordingly.
Another issue is whether to have a section on "Duties of the State". The current constitution (Thailand's 20th) incorporated a new part with the heading "Duties of the State" and shifted some of the rights of the people found in previous constitutions to that new part. Yet this resulted in discrepancies, for instance, in relation to education.
In the 20th constitution, access to education is now found in the part labelled as "Duties of the State", and the promise is only for a 12-year duration. This provision thus downgraded the previous promise of the state to fulfil the right to education for 15 years. Idiosyncratically, this discrepancy was later corrected (re-raised to 15 years) -- not by participatory constitutional reform but by an executive order derived from the 19th constitution, the country's interim constitution initiated by the coup leaders.
On scrutiny, one of the most sensitive areas is in regard to the limitations imposed on rights and freedoms in the 20th constitution. According to Section 26, limitations are possible but they must fulfill a four-part test. They must comply cumulatively with the "rule of law" and "human dignity". They must also be necessary and proportionate to the circumstances.
This section has been cited many times by the courts. When it is interpreted illiberally, it has been used to justify many constraints, especially on the right to freedom of expression and freedom of peaceful assembly. Subjective interpretation of this section might thus undermine fundamental guarantees in the constitution and other laws of the land, as well as internationally.
A more objective approach requires that interpretation of those limitations should follow the deliberations of international mechanisms, such as the UN's Human Rights Committee. The International Human Rights Law on the subject dictates that some rights, such as the right not to be enslaved and the right not to be tortured, are absolute rights for which there can be no limitations.
Other rights , such as freedom of expression and assembly, are not of an absolute nature and can be limited, but those limitations are subject to strict criteria. The authorities must provide clear proof that the limitations are based on a clear and transparent law ("legality"), are necessary and proportionate to the risks ("necessity and proportionality"), and serve a legitimate purpose anchored on democratic practices ("legitimacy").
As a pervasive challenge here, many of the cases where the accused are prosecuted and or are found to be guilty of national security-related laws and Criminal Law provisions shielding various key institutions have yet to convince the global community that they are non-arbitrary, credible and fair in the eyes of international standards.
Poignantly, this was the plight of more than 200 children subjected to the criminal justice system in recent times, deserving leniency with an illuminating signal from the top.
Vitit Muntarbhorn is a Professor Emeritus at Chulalongkorn University. He has helped the UN in various positions, including as UN Special Rapporteur, Independent Expert and member of UN Commissions of Inquiry on Human Rights.