Thailand is at high stake as the country has been trapped as a middle-income economy for a long time and the public, especially those in new generations have lost trust in the government, politicians, and the justice system. In-depth analysis reveals that the root of the problem that is weakening national competitiveness and public trust is the rule of law recession.
How important is the rule of law? Why has the government raised the rule of law recovery as a national agenda? What was the situation of the rule of law in Thailand in 2023? And in what aspects is the rule of law associated with sustainable development that every sector can participate in? These were starting questions for the “Rule of Law Forum: Investing in the Rule of Law for a Better Future” organized by the Thailand Institute of Justice (TIJ) in cooperation with the World Justice Project (WJP) and THE STANDARD new agency on January 5, 2024. The forum aimed to disseminate the issue to the public and encourage active recovery of the rule of law in Thailand.
The importance of the rule of law
The rule of law refers to a set of principles of governance in which the law is applied equally and fairly to everyone with respect for the people’s basic rights. The provisions of the law must have a legitimate origin and must be fair and contemporary. Related officers in the justice system must embrace righteousness and the people must have equal access to the system and be treated with justness.
According to the IMD World Competitiveness Ranking 2019, Thailand was placed 25th in the world in national competitiveness – its highest rank ever. However, the ranking in 2022 dropped Thailand to the 33rd before a slight rise to the 30th in the past year. The weakness lay in the government's efficiency, which was evaluated through the institution framework sub-factor (covering the issues of the rule of law, bribery and corruption, and democracy index) and the societal framework sub-factor (covering issues of social inequality and the people’s freedom to express their opinions).
In this context, strengthening of the rule of law will thus be the first steppingstone for Thailand to enhance its positive image regarding good governance, which will help to build confidence among investors and this may be a means to rescue the country from the middle income trap to prosper as a high-income country.
Strengthening the rule of law is a critical challenge not only for Thailand but also for countries all over the world. Since 2015, the United Nations declared the rule of law as an integral part of the 16th of the 17 sustainable development goals (SDGs). It is significant both as a goal and as a contributing factor to achieving the other goals.
The WJP created the Rule of Law Index to serve as a tool for evaluating the rule of law in each country annually. It consists of eight main factors, namely constraints on government powers, absence of corruption, open government, fundamental rights, regulatory enforcement, civic justice, and criminal justice.
According to Ms. Elizabeth Andersen, Executive Director of WJP, the Rule of Law Index was developed to reflect the experience and perception of citizens and experts in a country. In 2023, a survey was conducted with 149,000 households and 3,400 legal experts and professionals in 142 countries worldwide. It was also noted that in a country or society with a good level of development in terms of the rule of law, the measurements of economic and social indexes usually show according to results. The key factors for the successful development of the rule of law are leadership at all levels in the country, clear and cohesive strategic plans with appropriate monitoring, evaluation, and inspection systems, and, above all, participation of all sectors in society.
Continuous rule of law recession in Thailand
In 2023 Thailand scored 0.49 out of 1 mark on the WJP Rule of Law Index, thus ranking 82nd among 142 countries worldwide. The score was decreased from 0.50 received in previous years and was the lowest ever since Thailand was first evaluated in 2015. Regulatory enforcement, absence of corruption, and criminal justice efficiency were three factors that Thailand’s scores were much lower than the global and regional average.
Thai government to raise rule of law recovery as a national agenda
It was deemed a good start for Thailand when the Executive Branch announced its policy to the parliament on September 11, 2023, stating "The government will legitimize its administrative power as a democratic form of government with the king as head of state by restoring and strengthening the effective rule of law that embraces transparency and is internationally accepted, because recovering the reliable rule of law is a significant investment in ideological and social infrastructure for t6he country. This investment will use minimum state budget to maximize national development effectiveness.”
At the Rule of Law Forum, Thailand’s Prime Minister and Minister of Finance Mr. Srettha Thavisin passed his message of vision to raise rule of law recovery as a national agenda, stating that the rule of law was recognized and valued in the global stage by the United States and, as such, should be incorporated as one of the SDGs. Given the enormous scale of the problem, a four-year term of the government seems to be quite a short time but the government pledges its resolute commitment to work and materialize this thrust on a continuous basis.
It is honorable that WJP which is a foremost international organization has made the rule of law in Thailand tangible and measurable via the annual evaluation of the rule of law index. The evaluation result will reveal the voices of the public and different leading organizations and will encourage government agencies and other entities to review and improve their operations.
Recovering the rule of law will enhance the ease of doing business in Thailand, As a result, trust and confidence of investors and the world’s leading companies will be restored since they will be treated in line with just laws. On the other hand, the rule of law is an important mechanism for eliminating corruption problems and encouraging government officials, politicians and the general public to file complaints, and this will concomitantly facilitate the prevention and suppression of corruption.
The open government technology is an important contributing factor to the enhancement of transparency in the government sector. The government will underscore the development of information infrastructure and the disclosure of datasets by the government agencies. The open data policy will allow the public to access and reflect upon the government’s data and voice their feedback. In this manner, they will act as the government’s partners in the national development.
“Enhancing the effectiveness of rule of law is a challenging mission that takes much time and requires continuous endeavor. However, today our endeavor has started and the hope for success has been kindled. I wish this forum will successfully fulfill its objectives of raising public awareness and inspiring all sectors to unite to drive the restoration of rule of law in our country.” Concluded the Prime Minister.
The Ministry of Justice: Establishing justice to steer national development
In its capacity as the government agency that observes the Constitution and the rule of law to generate public benefits and maintain happiness in the country, the Ministry of Justice responds to the government policy by announcing its goals of securely establishing the rule of law in the justice system within the next four years.
Police Colonel Tawee Sodsong, Minister of Justice, described the roles of the Ministry of Justice in promoting the rule of law in Thailand. He emphasized the importance of “justice”. A country or society without justice will finally fall into discord.
Therefore, the Ministry of Justice has a forward vision to create society of peace and harmony. The main focuses are on “good lives” and “good laws”. That is, it will be society where the people enjoy a good quality of life, liberty, equality, justice, and equal dignity, while the constitution and laws are effective and respected. In addition, it is essential to have a good leader who embraces justice and integrity and whose leadership can influence the people.
The Ministry of Justice has a major mandate to administrate the justice system to ensure the people are treated with justice on an equitable basis. The justice system must be accessible to people from all walks of life. Crime problems need particularly to be addressed for the public well-being. The term “criminal’ is not defined as law violators only but it also includes the entire justice system that covers laws, law users and law enforcement officers. Negligence of the government officials is also a kind of corruption.
“Thailand has the lowest score on the efficiency of the correctional system. The cause is the large numbers of prisoners. Once they are released from prison, there is a high chance of recidivism. At the same time, the international community still recognizes human rights violation in correctional institutions. For example, according to the Constitution, as long as the court has not made a decision, a person cannot be treated as an offender. However, currently there are many people who are being held in jail during the trial process.”
According to the Minister of Justice, enhancement of the rule of law should be executed via the National Commission for Justice Administration Management. He believes that if the rule of law is re-established as declared by the government, the Thai society will certainly improve and strong social foundation will be laid for future generations.
Legal reform for enhanced national competitiveness
Representing the private sector, Mr. Kriengkrai Thiennukul, Chairman of the Federation of Thai Industries, elaborated that Thailand’s economy is being threatened by several issues including global warming, transitioning to aging society, the middle income trap, political conflicts, corruption, household and public debts, corporate debts, farmer debts, and informal debts. These problems hinder the national economic growth.
As for the Thai industrial sector, the current challenges include outdated laws and obstructing regulations, rising raw material costs, labor shortage, lack of technology and innovations, high logistical costs, and the baht’s value fluctuation stemming from inefficient economic structure.
An issue that The Joint Standing Committee on Commerce, Industry and Banking (JSCCIB) has been calling for is regulatory guillotine or the review of existing laws and regulations, which should have been seriously carried out, added the Chairman of the Federation of Thai Industries. New laws have been continuously issued, yet the numerous long-established laws are not revised or improved. Outdated provisions should have been amended or repealed. Currently, there are more than 100,000 laws in the country and this can lead to corruption problems because business licensing rely on discretion of the authorities and unnecessarily long time and hidden costs are required for the complicated processes.
“South Korea serves as an excellent example. In South Korea, about half of the existing laws were repealed while approximately 25% were revised. Consequently, millions of unnecessary procedural requirements were eliminated and this resulted in lowered business costs. As such, its GDP grew by 4.4 % and, above all, the endeavor helped to unlock national economic potential. Korea has since emerged as a world’s leading economy.”
Mr. Kriengkrai also added that apart from the old laws that need to be revised or revoked, there need to be new modern laws to accommodate the new S-curve industries that aim to drive the country out of the middle income trap and light a beacon of hope for startups on the path of national development.
Rule of law and the protection of the people’s rights and liberty
In the social dimension, Ms. Pornprapai Ganjanarintr, Chairperson of the National Human Rights Commission of Thailand (NHRC), an independent organization under the Constitution that acts as the main entity to listen to the voice of the people and the civic sector, explained how the human rights principles and the rule of law inseparably interrelate.
Human rights must be upheld by the government. This includes respect for and protection of the people’s rights, assistance and remedy provided when an individual’s rights are violated, and different promotion and support measures to ensure comprehensive and equitable treatment of the people. Meanwhile, the rule of law, which is a regulatory framework for driving legal enforcement, must be applied with respect for human’s rights as well.
Issues regarding the rule of law, human rights and human dignity are incorporated into the current Constitution, which is the supreme law in the country. However, there remain certain laws that violate the people’s rights. For example, the announcement of a national park boundary resulted in the expulsion of people who previously lived in that area. Some of them were charged with illegal encroachment and were penalized or imprisoned. In Saraburi Province, local people once filed complaints against smoke and dust released by the factories but the inspection results showed that all factories faultlessly observed related laws and regulations. In this case, it is evident that the laws deprived the people of the rights to live a normal life.
Another case that has been frequently reported to the NHRC is accessibility to the justice system. There are people that were arrested unjustly, were hurt, or were made missing persons, especially during political gatherings. To date, almost 3,000 persons have been arrested with political charges, out of which 300 are youths. This issue should be concerned and addressed by the government. Temporary release is fundamental rights they deserve.
“I refer to these cases to indicate that the rule of law and human rights will help Thailand to move forward if we seriously work together to drive this matter. The rule of law should be an integral part of the national primary policy. All laws that may allow for human rights violation and those that have not covered the protection of the people’s rights must be reviewed. Once the human rights protection system and effective rule of law have been established in our country, the domestic investment climate will improve and attract foreign investment and trading in a larger scale.”
Strengthen rule of law to achieve good governance
Mr. Vichien Phongsathorn, Chairman of the Anti-Corruption Organization of Thailand (ACT), reinstated that corruption problems are associated directly with the rule of law. During the past five years, Thailand’s scores on the Rule of Law index and the Corruption Perception Index have accordingly been lower than the global average.
According to public polls, the top problem that the people want the government to solve is corruption (25%). This is because the issues related to the rule of law, good governance and corruption are underlying problems that lead to several other problems with respect to education, social inequality, quality of life, drugs and personal economy. This reflects that Thai people have seen the need to address these problems and expect for the government’s serious action.
Therefore, the government should share its vision and missions in this regard with different sectors in society. Open data and open government policies are what the government can immediately put in place. In addition, related agencies should promote the public hearing processes to allow the public, especially the new generation, to become key players in the anti-corruption effort.
Currently, different forms of actions have been taken by the ACT and other social organizations and enterprise to combat corruption. Databases were created for transparent disclosure of information. Other efforts include development of knowledge and creation of different platforms for corruption surveillance and reporting. The Public Sector Procurement Act also encourages private participation in the Integrity Pact and developing private sector networks.
In Mr. Vichien’s opinion, however, the aforementioned efforts are not enough for eliminating corruption. He thus recommended three measures that can be implemented immediately. First, the policy-makers should set the Open Data and Open Government policy as a prioritized agenda among the government, private and civic sectors. Next, the public hearing process should be adopted and related agencies and operational officers should take into account the feedback for further development and improvement.
Last but not least, new generations should be encouraged to take part in all endeavors. The prerequisite is to educate and equip them with knowledge and provide them with stages for expressing their opinions. As such, they will partner in the surveillance networks and serve as powerful players in the change driving process.
“If these three measures have been put in place, I believe that various indicators will definitely change in the next few years. Last but not least, I wish the anti-corruption move to be set as a national agenda and a war room should be established for serious problem solving.”
Promote participation from all sectors in driving the rule of law
Dr. Phiset Sa-ardyen, TIJ Executive Director, as an organizer of the event, explained that the essence of the rule of law is to make the people respect and observe the laws. The key success factor is that the laws must be legitimately enacted via rightful process and embrace democratic values. The provisions must be reasonable and focus on the protection of the people’s rights and liberty.
In Thailand, investing in the rule of law to drive social development does not start from scratch, but it is an unending and unfinished business because certain effort has been made but yet to be effectively successful. The rule of law has not been strengthened to its full capacity.
To strengthen the rule of law, a novel approach must be adopted with focuses on two factors. The first contributing element is participation from all sectors in society. It is essential that each and every party unite in this endeavor because not any single entity can accomplish it on its own.
The other key to success of this novel approach is an accountability framework for joint operation. There must be division and distribution of duties, predetermined goals and focuses, and work priority. All operations must be monitored, inspected, evaluated, and driven on a continuous basis so that each operating entity is aware of its current mission and performance effectiveness. A defect or weakness will thus be addressed.
At the national level, the driving mechanism consists of the governmental and civic movements. Dr. Phiset thinks that the civic movement can better mobilize and optimize resources available in each sector and this will encourage the governmental movement to think and act with greater prudence to create an appropriate accountability framework.
In this connection, TIJ is more than ready to act as advisor and support the governmental movement. TIJ will help simplify knowledge and information availed by international entities and analyze the Rule of Law Index to determine priority area. TIJ will also cooperate with the mechanisms set up by the government to ensure the knowledge acquired will be optimized and the rule of law is driven corresponding with the social context in Thailand.
With respect to the civic movement in the domains of its expertise, TIJ will make use of knowledge and strong networks to act as a facilitator in formulating questions, defining issues, and compiling opinions obtained from brainstorming discussions. In other domains, TIJ will act as observer and learn together with other parties.
“Finally, TIJ will act as an intermediary between the governmental mechanisms and the civic mechanisms. Even though both movements are powerful, but they do not trust each other as they should owing to different backgrounds and constraints of each party. Meanwhile, TIJ is an organization with special characteristics; though operating under the supervision of the Minister of Justice, there is a board of directors to set up policies. In addition, TIJ is an organization in the United Nations network. I think that this unique status will be useful for this challenging thrust and TIJ can serve as a key player in strengthening their trust in each other.”
Next step… the future of rule of law and sustainable development in Thailand
The Rule of Law Forum was concluded by an exclusive interview with Professor Dr. Kittipong Kittayarak, TIJ Advisor, who pioneered and has played a vital role in driving the reform of the Thai justice system throughout the past 30-40 years.
Assessing himself for the performance in this regard, Professor Dr. Kittipong thinks he failed to drive forward the rule of law when considering the current outcome in terms of both the indicators and the public’s attitude towards the justice system. To successfully achieve the goal in the future, we need to work through lessons learned from the past and do the better.
For example, in the early stage of this endeavor, he focused directly on the laws as he thought that once the criminal procedure code was successfully amended, protection of the rights and liberty of the victims and the alleged offenders as well as justice will be concretized. Unfortunately, the effort was ended up in a drawer since the incumbent government did not intend seriously to accomplish it.
Before 1997, when the democratic system flourished in Thailand, he and his team worked to accomplish the Constitution of the Kingdom of Thailand B.E. 2540. However, he subsequently learned that giving the government more power and establishing strong inspection systems generated contrary results. It weakened the overall governance system and led to conflicts. The rule of law was replaced with “rule by law” because those in power used this mechanism to maintain their power and prevent political competitors from assuming power.
Therefore, circumspect thinking is vital for any further movement. Effective rule of law must help strengthen good governance and efficient good governance will lead to strong democratic governance. As such, the rule of law, good governance, and democracy are interrelated and inseparable.
In his opinion, the issue that should be driven as an urgent agenda is enhancement of the national competitiveness, which can be achieved through repeal and reduction of unnecessary and obstructive laws and update of the extant laws. Another important agenda is the Open Government policy, which is a strong point of Thailand and can be implemented immediately with the use of cutting-edge technology and public involvement process.
The constitutional mechanism is another issue that needs, though difficult, amendments. Thailand is among a few countries in the world that the rule of law is referred to in its constitution – in both the 2007 and 2017 editions. However, the rule of law has not been actually concretized. On the contrary, the constitutions of most countries do not specify the rule of law but they have well-established mechanisms for protecting the rule of law.
Professor Dr. Kittipong concluded that to drive the rule of law, we need not wait for the government to act. The endeavor should be commenced by the civic sector. The first thing to do is being aware of the problem and recognizing that the problem is caused by the weakened rule of law. Such insight will motivate investment to recover and strengthen the rule of law for a more sustainable future of the country – Investing in the Rule of Law for the Better Future.
