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Thai Supreme Administrative Court Chief Criticizes Emergency Decree

Posted on: Tuesday, 9 August 2005, 09:00 CDT

Text of interview with Supreme Administrative Court President Ackaratorn Chularat by The Nation political desk entitled: "Emergency decree is 'against constitution'"; date and place not known, published in English by Thai newspaper The Nation website on 9 August

Supreme Administrative Court President Ackaratorn Chularat, who also serves as president of the Paris-based International Association of Supreme Administrative Jurisdictions (IASAJ), talks to the political desk about the controversial state of emergency decree, the justice system and the court in general.

[Q] What do you think about the State of Emergency Decree?

[A] Rights and freedom are not superior to national security, and national security is not superior to rights and freedom. You have to keep a balance between freedom and security, and make sure that neither of them has priority over the other. It's the duty of the courts of justice to do this.

There can be limitations on rights and freedom under certain circumstances stated in the constitution. But according to Article 29, you can't limit the essential substance of people's rights and liberties, such as the right to bring a case to a court of justice. This decree has some provisions that can be legal issues.

It's the duty of the Administrative Court to examine the administrative branch's use of power. When cases involving the authorities' use of power cannot go to the Administrative Court [as stated in the decree], there could be legal problems.

People who feel this is unfair may bring their cases to the Constitution Court. [The decree's provision] is an infringement of basic rights under the constitution. If the Constitution Court rules this is against the charter, the Administrative Court will be able to rule on cases filed by those affected by the decree [which states that legal disputes arising from the decree shall go to a normal court].

[Q] What do you think about Article 17 of the decree, which exempts state officials acting under the decree from legal responsibility?

[A] When authorities cause damage to people, it's an administrative violation, and such a case should go to the Administrative Court. It's a mistake not to allow courts to scrutinize.

[Q] What do you think about the provision that allows authorities to hold suspects for as many as 30 days?

[A] Article 237 of the constitution prohibits holding of a suspect for more than 48 hours without court permission. Whatever you call them, a suspect or a guest, you can't detain them longer than the period allowed by law. It's unacceptable as far as law is concerned. It's against the constitution.

Thailand now holds the presidency of the IASAJ, which has a membership from more than 80 countries. I am concerned that those countries may view our government in a bad light. They may think that we fail to act as a legal state.

[Q] What are the flaws in the Thai justice system?

[A] The [police's] practice of showing suspects before cameras during public re-enactments of crimes is very rare elsewhere in the world. It's a violation of individual rights.

For the justice system, there must be stricter control over the powers of arrest, detention and investigation. Nowhere else in the world does a single agency have the power to arrest, detain and investigate. There should be separate agencies to take care of detention and investigation.

If the government was serious about this issue, I believe social problems could be reduced by half. And I believe the unrest in the South was caused by injustice in the justice system. For most people, no other problems are more serious than injustice. That's why I see a need to revamp our criminal justice system.

[Q] How many cases has the Administrative Court dealt with?

[A] Almost 20,000 and we have ruled on about 70 per cent of them.

There is a pile-up of cases because the Administrative Court has to be very careful. The court deals with cases that do not simply involve individuals, as in civil cases. Rulings by the court will become precedents for state agencies. I think the government can help reduce the number of cases of a similar nature by turning rulings by the court into law.

[Q] Do high-profile cases take priority at the Administrative Court?

[A] We don't care much about the fame of people involved in the cases. What we do is examine the use of power by public-office holders and set precedents for them to follow. We often rule on cases in a chronological order, but sometimes we group similar cases together. Other times the nature of the case calls for an early judgement, such as when there is a legal deadline for any of the parties to comply with.

Source: BBC Monitoring Asia Pacific

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