Thailand's Quest for Democracy and the Rule of Law

The fate of the election winner

Pita Limjaroenrat, former leader of the MFP and Prime Ministerial candidate, was reinstated in Parliament in January 2024 after his MP status was suspended during the Prime Ministerial vote last summer over an alleged breach of election rules.² However, the Constitutional Court later deemed the MFP's campaign to reform Article 112 (Lèse Majesté law)³ an attempt to overthrow the monarchy, ordering them to cease all such plans. This ruling raised concerns of party dissolution and lifetime political bans for its executives, including Pita Limjaroenrat. Subsequently, the Election Commission (EC) petitioned to the Constitutional Court in March for the MFP's dissolution. As of July 1st, the case still awaits a decision. Apart from the party dissolution case, 44 representatives of the MFP who proposed an amendment to Article 112 are facing accusations of violating the code of ethics⁴, potentially risking a political ban.

Additionally, three MPs from the MFP, all former political activists, are facing Lèse Majesté charges, with two already convicted and appealing, while the third case remains pending. If convicted without bail, they risk losing their representative status.

Legal battles within the government

Former Prime Minister Thaksin Shinawatra ended his 15 years of self-exile, returning just before his PTP formed a coalition with conservative elites and pro-military factions. In February 2024, he was granted parole. Detained upon his arrival in August 2023 for corruption and abuse of power, Thaksin spent his term in a VIP ward at a police hospital, citing health issues. Originally sentenced to eight years, his term was reduced to one year through a royal pardon, sparking public criticism of preferential treatment compared to other political prisoners. In late May 2024, however, the former Prime Minister was indicted under Article 112 and the Computer Crime Act by the Office of the Attorney General for a 2015 interview with a South Korean newspaper, facing up to 15 years in prison if convicted. While the procedure for Lèse Majesté accusations is notorious for its lack of presumption of innocence, which leads to pre-trial detention and denial of bail for political activists, the former Prime Minister was released on bail of 500,000 THB (approximately 13,513 EUR).

In April 2024, conservative circles also went after Thaksin’s ally in the current government: 40 senators petitioned to remove Prime Minister Srettha Thavisin from office, citing his appointment of Thaksin's former lawyer, previously convicted of corruption, to a government position. The court accepted the case and scheduled further proceedings for the upcoming months.

These legal battles raise speculation about the stability of the coalition formed by the PTP and conservative elites — two clans that fought each other for the last decades but united last summer to prevent the MFP from forming a government. The current situation can also be viewed as a form of lawfare aimed at controlling the political process and protecting the interests of conservative elites and the military.

The state of human rights and civil liberties

While progress has been made in legalizing same-sex marriage and embracing gender diversity⁵, concerns regarding civil and political rights persist in Thailand. Following a series of youth-led demonstrations from 2020 to 2022, a significant number of individuals, totaling 1,954, have faced charges for participating in public gatherings or expressing their political views across 1,295 cases.⁶ Key offenses include Lèse Majesté charges (Article 112), sedition, and violation of the Emergency Decree. In mid-May, the death of a prominent young activist, Netiporn "Bung" Sanesangkhom (28), due to cardiac arrest while in custody, brought attention to the situation. She was part of a youth movement advocating for a reform of the Lèse Majesté law and had been detained since 26th January 2024, initiating a hunger strike during her incarceration. Her death raised serious concerns about potential breaches of international legal standards regarding the presumption of innocence, pre-trial detention, and the right to bail. Additionally, it sparked public discussions on amending the Lèse Majesté law, justice reform, and a comprehensive amnesty bill (see below).

According to Amnesty International, the human rights situation under the Pheu Thai-led government has yet to see improvement.⁷ Reports by Thai Lawyers for Human Rights indicate ongoing harassment cases against political activists and an increase in prosecutions and convictions related to Lèse Majesté and other politically motivated cases since the formation of the new government, with the highest number of political activists detained in the past four years.⁸

Controversial referendum process for future constitutional amendments

In the lead-up to the 2023 election, multiple parties, including the PTP, pledged urgent amendments to the 2017 constitution drafted by the military junta after the 2014 coup. Constitutional amendment is a flagship policy of many parties. In April 2024, the cabinet approved the notion that amending the constitution would necessitate three referendums. The first referendum would inquire whether voters support the necessity of drafting a new constitution. If the majority agrees, the second referendum would inquire whether Section 256, which poses a major hurdle to rewriting the constitution, should be amended. This would pave the way for the drafting of a new constitution. The third referendum would then seek voters' decision on whether the proposed constitution should be adopted. Ongoing discussions focus on the first referendum question. Civil society organizations gathered over 200,000 signatures, urging a comprehensive rewrite of the constitution by a democratically elected Constitution Drafting Assembly. In their opinion, the first question should be: “Do you agree that the Parliament must amend the whole text of the 2017 constitution through members of the Constitution Drafting Assembly who must be elected by the people?”⁹. The government, however, would prefer to exclude some parts of the constitution from the amendment process by asking whether citizens agree “with the proposal to amend the constitution, except for Section 1 and 2, which deal with general provisions and the King respectively”¹⁰. This second option aims to preserve the constitutional monarchy and fully safeguard the royal prerogatives.

Pongthep Thepkanjana, a former member of the Committee on the Referendum Studies and member of the 1997 Constitution Drafting Assembly, underlines that the form of the state cannot be changed despite amending Section 1 and 2, adding that the two sections have been regularly revised in almost all constitutions.¹¹ The MFP expresses concerns about potential legal complexities in rewriting other relevant sections in the constitution and emphasizes the need for the new version to address Thailand's longstanding political polarization and foster a new societal consensus.¹² Sirote Klampaiboon, an independent academic and political commentator, stressed during a public seminar¹³ on June 14 the need for clear and straightforward referendum questions that can represent the will of the people. Given the complexity of the process, experts at the seminar predicted that the new constitution would not come into effect before late 2027.

Senators (S)Election

After the general election in 2023, almost all 250 unelected senators – appointed by the military government in 2018 – blocked the MFP from forming a government. Their five-year term ended in May 2024, prompting senatorial elections in June as required by the constitution. Campaigns ensued to encourage candidates to emerge, emphasizing the role of senators in shaping political decisions such as constitutional amendment proposals and appointments to courts and agencies.¹⁴ However, the next 200 senators will no longer participate in the prime ministerial vote as they did in 2019 and 2023. They will be selected from diverse social and professional groups to ensure a wide representation of the population. However, the minimum age requirement of 40 years excludes many politically active young Thais. Additionally, only those who pay a fee of 2,500 THB (approximately 68 EUR) can become official candidates and participate in the election process, posing a barrier to inclusivity. Critics termed the election process "the most complicated in the world"¹⁵ as it involves an "intra-group election" system.¹⁶ This system requires candidates in the same social and professional group to cast votes among themselves. There are 20 groups in total, including representatives from the education sector, law and justice procedures, the elderly, disabled individuals, and ethnic groups, among others.¹⁷ The top five finalists from each group proceed to the next round where they will vote for candidates from other social and professional groups. Such election system took place in June at three different levels: district, provincial, and national. Those who made it to the top ten finalists of their respective group at the national level will become senators.

During the application period, the Election Commission faced criticism for issuing regulations prohibiting candidates from discussing policies or political programs, and campaigning on social media. These regulations were challenged in court and subsequently revoked. For Sunai Phasuk, senior researcher from Human Rights Watch, the senatorial election is fundamentally flawed as its electoral rules are designed to maintain the status quo.¹⁸ According to the Department of Provincial Administration, 48,117 applicants met all requirements at the end of the registration period. This was less than half the number expected. The results of the senatorial elections are expected in July.

Amnesty Bill

Over nearly two decades, Thailand has experienced two successful military coups (2006 and 2014) and numerous street protests, often resulting in casualties, violence, and legal prosecutions. The most recent protests in 2020-2022 led to political prosecutions, particularly targeting the younger generation. To address longstanding societal polarization and societal reconciliation, granting amnesty for political cases has become a focal point of discussion among various parties. While both conservative and pro-democratic parties support the idea, their proposals vary in terms of timeline, categories of cases to consider, and the composition of the Amnesty Committee. In addition to proposals from political parties, a civil society network has introduced an Amnesty for People Bill aiming to encompass political cases from all sides while excluding coup makers and government officials who used excessive force against civilians. The interpretation of "political cases", particularly whether Lèse Majesté offenses should be included, remains a contentious issue. Conservative and pro-military parties explicitly exclude Article 112 offenses from consideration, while the reform-oriented MFP's draft leaves the decision to the Amnesty Committee. The ruling PTP approaches the amnesty issue cautiously, mindful of its past attempt in 2013 to grant general amnesty, which resulted in prolonged street protests leading to the 2014 military coup. However, the recent Lèse Majesté indictment of former Prime Minister Thaksin Shinawatra has compelled the party to clarify its stance.

Conclusion

The European Union and its member states have strengthened ties with Thailand since the transition to a civilian government. Negotiations for the EU-Thailand Free Trade Agreement, previously halted since the 2014 coup, have resumed in March 2023, with Thailand aiming to finalize the agreement by 2025. Additionally, Thailand announced its candidacy for the UN Human Rights Council (UNHRC) for the 2025-2027 term in September 2023. The Kingdom is also moving toward achieving membership of the Organization for Economic Co-operation and Development (OECD). These developments are expected to prompt various adjustments in Thailand to align with international standards, supporting current efforts by many stakeholders, experts, academics, NGOs, and citizens to strengthen Thailand’s democracy and rule of law.

References

1. Freedom House, “FREEDOM IN THE WORLD 2024: Thailand”, 01.03.2024, https://freedomhouse.org/country/thailand/freedom-world/2024
2. About the general elections in Mai 2023, Pita’s suspension, and the government formation in September 2023, see:  Dr. Céline-Agathe Caro, Sarita Piyawongrungruang, Parlamentswahlen in Thailand (12.04.2023) and Thailands neue Regierung – Koalition der Erzfeinde gegen politischen Wandel. (11.09.2023), Country Reports, Konrad-Adenauer-Stiftung eV.
3. The Lèse Majesté law or Article 112 of the Thai Penal Code criminalizes critical comments about the royal family and can lead to 3-15 years of imprisonment.
4. The code of ethics originally applies to constitutional court justices and staff in administrative agencies. However, it was also applied to representatives, senators, and members of cabinet.
5. CNN, “‘Monumental step forward’: Thailand to become first Southeast Asian nation to legalize same-sex marriage”,18.06.2024, https://edition.cnn.com/2024/06/18/asia/thailand-same-sex-marriage-intl-hnk/index.html
6. Thai Lawyers for Human Rights, “April 2024: 1,295 cases have been filed against 1,954 people”, 20.05.2024, https://tlhr2014.com/en/archives/67085
7. Asia News Network, “Thailand’s human rights record remains dismal, says Amnesty International”, 30.04.2024, https://asianews.network/thailands-human-rights-record-remains-dismal-says-amnesty-international/ 
8. Thai Lawyers for Human Rights, “Exploring the situation of political cases, threats against political activists after seven months of Srettha’s government and during parliamentary general debates (in Thai)”, 03.04.2024, https://tlhr2014.com/archives/66097
9. The Nations, “iLaw wants question framed by it to be used for charter referendum”, 14.08.2023, https://www.nationthailand.com/thailand/politics/40030209
10. Bangkok Post, “First referendum will ask public just one question”, 27.12.2023, https://www.bangkokpost.com/thailand/politics/2713601/first-referendum-will-ask-public-just-one-question
11. iLaw, “Pongthep confirms Constitutional Monarchy cannot be changed, but Section 1 and 2 are changeable (in Thai)”, 15.12.2023, https://www.ilaw.or.th/articles/6349
12. The Standard, “Chaithawat asks the government why Section 1 and 2 of the Constitution cannot be amended, while Phumtham answers do not obsess over the matter as we have to find common ground to move forward (in Thai), 11.01.2024,  https://thestandard.co/chaithawat-asked-the-gov-amending-the-constitution/
13. The seminar was organized by the Institute of Democratization Studies (IDS), King Prajadhipok's Institute (KPI), and KAS Thailand on 14 June 2024 at KPI’s learning center in Bangkok.
14. The 2017 constitution provides duties and powers of the Senate in giving approval to a person for holding positions in organs under the constitution, namely judges of the Constitutional Court, members of the Election Commission, ombudsman, members of the National Anti-Corruption Commission, members of the National Human Rights Commission, etc.
15. Thai PBS World, “A guide to Thailand’s next Senate and ‘the most complicated election in the world’”,17.04.2024, https://www.thaipbsworld.com/a-guide-to-thailands-next-senate-and-the-most-complicated-election-in-the-world/
16. iLaw, “2024 Thai Senate Selection, Explained”, 03.03.2024, https://www.ilaw.or.th/articles/20706
17. See the total list of 20 social and professional groups of senators here: https://www.idea.int/sites/default/files/2024-05/Thai%20senate%20election%20infographics%20(1).png
18. Human Rights Watch, “Thailand’s Upcoming Senate Election Fundamentally Flawed”, 02.05.2024, https://www.hrw.org/news/2024/05/02/thailands-upcoming-senate-election-fundamentally-flawed