Ending the Coup D'état through Legal Means and Reforming the Norms of the Thai Court

Abstract

A coup d’ état is considered legal if it is successful – this is the rule of politics in Thailand, dating back to the era of absolute monarchy. This principle served as an ‘unwritten constitution’ or ‘uncodified constitution’ of Thailand, which should have been revoked after the promulgation of a codified constitution in 1932 when Thailand changed its government form from absolute monarchy to constitutional monarchy. However, this unwritten constitution has been effective until today. This persistence has led to 13 coups and 20 different constitutions in Thailand since 1932, with the possibility of another coup in the future as long as this unwritten constitution remains in effect.

            The legal status of coups in Thailand was established by a ruling of the Supreme Court in 1953, which effectively legitimized the 1947 coup, citing the reason that the coup is ‘successful’. This ruling has become the de facto ‘norm’ within the Thai jurisprudence and the unwritten constitution. To prevent future coups in Thailand, it is imperative to abolish this unwritten constitution. Since it is difficult to succeed in this attempt after the coup has occurred, this action should be taken before the occurrence of the next coup. Since the 2017 Constitution legalized only the acts of the National Council for Peace and Order (NCPO), which means that the acts of coup-makers before 2014 are no longer constitutionally valid. In the event of a legal case involving the use of any announcements or orders from coup-makers predating 2014, a judge can challenge the norm by refusing to accept the legitimacy of these coup actions. In the case of announcements and orders issued by the NCPO, Section 279 of the 2017 Constitution states that the acts of the NCPO should conform to ‘this constitution and laws’. However, it is important to note that this conformity is a matter of formality and does not automatically guarantee compliance with the constitution and laws in terms of content. Just as a parliamentary act may be found, after its promulgation, to be unconstitutional, the acts of the NCPO can also be declared substantively unconstitutional.

            In addition to the revocation of Section 279 from the Constitution, it is necessary to eliminate all announcements and orders issued by coup-makers from the Thai legal system. When it comes to the legal status of an act, a parliamentary act is necessary for legislative acts, while government actions require only the Prime Minister’s order. Nonetheless, provisions against coups in the constitution should involve further additions. However, such provisions and the constitution itself can still be abolished by coups, as has happened in the past. What Thailand truly needs is a new unwritten constitution running in parallel, which explicitly prohibits coups, support for coups, and the legitimization of coups. This should be established through a social contract between stakeholders such as the military, the judiciary, politicians, and citizens, affirming the commitment of Thai society to never accept a coup again.