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Expert warns of dangers of Article 44

Posted by pakin On January - 25 - 2016

Move to vest absolute power with PM could have long-term effects

The post-coup Article 44 was included in the 2014 interim charter with the aim of giving the prime minister the option of wielding absolute power in a bid to find solutions for issues of importance.

But given its absoluteness, critics have viewed the use of it with scepticism, and its fruitfulness remains in question in the eyes of those watchdogs and individuals affected by its application.

Article 44 grants absolute power to Prime Minister General Prayut Chan-o-cha in his capacity as the head of the National Council for Peace and Order. It is an absolute authority in ordering and retraining people or performing any act, whether legislative, executive or judicial.

Enacted after the lifting of martial law last April, Article 44 has been evoked by Prayut to deal with a variety of issues, from reorganising lottery prices to removing officers alleged of corruption.

“Article 44 is [designed] to grant the government the authority to deal with problems which that could hardly be solved or solved at a slow pace [if tackled using regular laws],” said Prayut last June. “That’s why [a special] law is needed. Some problems need urgent solutions and some need integrated law enforcement for solutions.”

As monitored by The Nation and the Internet Dialogue on Law Reform, Prayut invoked this power 54 times between December 2014 and January 20. Three orders were issued in the name of national security and nine were issued to enforce laws and implement measures to reorganise society.

There was also an order to set up a new agency, two orders to improve the economy, seven orders to adjust administrative processes and 28 orders to appoint, shift or suspend officers.

Despite the government’s effort to do this in a legal manner, there are doubts over whether the practice truly aims to accelerate solutions and is merely designed to allow the premier to end critical issues. For instance, instead of seeking a royal endorsement as usually practised, Prayut signed order No 26/2015 last September to revoke the police rank of the former PM Thaksin Shinawatra.

Many people are concerned this absolute power could be wielded without discussions with relevant parties, like when Prayut signed order No 17/2015 last May to declare five special economic zones that resulted in the acquisition of land in the designated areas.

The order was declared out of the blue, said Chompunut Kraekonwong, whose mother’s crop fields in Tak’s Mae Sot district have been expropriated following the order. Chompunut’s mother and some 90 other farmers can still make a living in the fields, but they have no idea when that will end.

“We have learnt that the authorities will turn our farmlands into industrial districts,” Chompunut said “But we were never asked if we want that to happen.”

Local people would gain little to nothing from the industrial zones, she explained. She said that as a borderland, the economically advanced Mae Sot would be flooded with Myanmar workers on one-day entry visas once the SEZ was activated. Increasing construction would affect fertile lands, which locals inherited from generation to generation, she said, adding that locals were concerned.

Chompunut said the committee for the Mae Sot Special Economy Zone had promised to provide between Bt7,000-Bt12,000 per rai as compensation, but had decided to rely on compensation figures calculated by the Irrigation Department. The exact amount of compensation remained undecided, she added.

“No matter how much it is, it will never be a substitute for the land that has fed our lives,” she said.

Chompunut and other affected locals have written to several governmental agencies, including three letters toPrayut via the Damrongdhama Centre, and were told the matter would be reconsidered by relevant agencies. “And we’ve seen no progress so far,” she said, adding: “We can’t see how the Article [44] will ever benefit the country. [The authorities] can stimulate the economy in other ways without affecting people. We should also be the ones contributing for such development.”

The phrase “out of the blue” was also used to describe the issuance of order No 21/2015 that resulted in Lt-General Pongsakorn Rodchompoo being dismissed as deputy secretary-general to the National Security Council (NSC) on July 23. He was transferred to an inactive post as an adviser to the PM.

“Till today, I don’t know why I was transferred,” Pongsakorn said. “At the NSC, I was working on terrorism issues, such as pushing for a more integrated immigration data base in the region. But with my current position, I can do nothing further on that.”

Now a subcommittee member in the drawing up of a 20-year national strategy and an adviser to the National Reform Steering Assembly (NRSA) committee on local administration, Pongsakorn admitted that his current positions involved about only 20 per cent of his full capability.

“I feel it is a pity. There are not many NSC officers capable of working on terrorism issues, and now there is not even a senior [officer] pushing them,” he said. “There should have been discussions with officers over where they would have liked to be reassigned.”

Legal academic Ekachai Chainuvati warned that using Article 44 in such a manner ran the risk of turning it into an abusive power as it could not be reviewed judicially.

The power was also deemed dangerous to any person who wielded it, Ekachai said. “As Prayut has a soldier background, his character tends to favour quick, clear, and immediate decisions. But it’s impossible forPrayut, and everyone else, to know everything,” he said.

He continued: “I believe he receives proposals from agencies, but it’s he who has to take sole responsibility when issuing orders.”

Despite Prayut‘s best intentions, an academic said, Article 44 might not be the best solution to deal with national-agenda matters. For instance, the public may believe it helped curb corruption, but there were existing options to solve problems without the need for such power, the academic said.

Ekachai said Article 44 could not be used alone to tackle national reform, as the process required a broader consensus from all sections of society.

The impact of the article could even stretch beyond Prayut‘s reach, he said, as its impact would remain until there was a new law or order to revoke it, and Prayut may no longer be premier.

The use of the article showed that society was tolerant of state authority, he said. It also indicated that society accepted “an end justifies the means, no matter what it is”. “To simplify that, it means that it is acceptable to do whatever [is decided] to achieve desirable goals. As a legal academic, I can’t accept that.”

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