Continued Article 44 use degrades Thai democracy, academics fear

Described as efficient and iconic, Article 44 is widely known as the tool that the NCPO has invoked to swiftly enforce legislative, administrative, and jurisdictional powers – or absolute power – in the hands of Prime Minister General Prayut Chan-o-cha.
So far, 149 Article 44 orders have been enacted to deal with a range of topics from reshuffling government officers, establishing special bodies, putting Dhammakaya Temple in a controlled area, granting policing power to military officers, and stripping the police rank of Thaksin Shinawatra, the junta’s number-one opponent.
Officials in the bureaucracy and academics have said they believed the special power was a magic solution for every problem. Prayut himself at times seemed addicted to the power as he exercised it in many circumstances.
In July, a month before the referendum on the junta-written charter draft, as many as 13 Article 44 orders were enacted, the most in a single month. In September, December and February, Prayut signed nine orders in each month.
The junta chief exercised the special power an average of five times a month. February and March 2015 were the only months no orders were published in the Royal Gazette. 
Accelerating a normally sluggish bureaucratic system has been the junta’s prime reason for enforcing Article 44. Sixty-four orders were used to swiftly reshuffle, suspend or appoint officers as well as establish new bodies.
Legally speaking, Article 44 belongs to the interim charter. It was supposed to be defunct after the new charter came into force. Technically, the junta put it into the 2017 Constitution citing that the NCPO head enjoys all statuses and powers as granted in the inactive interim, until the next government is in place.
Charter drafter chief and the NCPO member Meechai Ruchuphan said “nothing related to Article 44 has changed in this current charter except that we have to be more cautious that any Article 44 order won’t corrupt other stipulations in the charter.”

Exercising special powers under the new constitution mostly depends on decisions of Prayut and his deputy in legal affairs Wissanu Krea-ngam. Sometimes they come out of the blue, sometimes the NCPO brainstorms to shape each order on Tuesdays ahead of the Cabinet meeting.
“This one-man-show style of using power is unhealthy to a democratic climate in Thai society,” said Prinya Thaewanarumitkul, Thammasart University’s vice rector and public law lecturer.
The nature of Article 44 is no stranger to Thais as it is almost 60 years old, Prinya said. 
It first appeared as Article 17 in the 1959 charter under the ruling of Field Marshal Sarit Thanarat. Afterwards, after a succeeding coup, this sort of absolute power has always been insert in interim charter drafts and announced by coup makers. The 2006 interim was the only one that did not stipulate this power.
However, the current 2017 charter is the first time ever that the permanent constitution allows this sweeping power to exist, although not permanently, Prinya noted. 
“Its absolute nature technically has no bounds,” he said. “Meaning that practically, it could even overshadow the charter’s whole sector that guarantees rights and freedoms of people.”
There is Article 77 in the charter, stipulating that any legislation needs to go through hearings from all related parties and needs to be publicly accessible.
Prinya said this could possibly balance the power of Article 44, but he was still concerned that Article 77 is written in a suggestive way with no hard obligation such as punishment.
The 149 orders enacted so far are the highest number ever enacted in Thai political history, he said, adding that it seems Thailand has become addicted to Article 44.
“People are asking and requesting Prayut to enforce his absolute power to solve such and such,” he said. “Yes, Article 44 can give us shortcuts to solution, but never resolution.”
By resolutions, he suggested that public participation needs to be included to ensure that law enforcers do not exercise power in ways that may excessively impact related parties. This, however, seems to go against the nature of Article 44, whose legislation is quite far from transparent.
“Article 44 does not teach us to be self-reliable in solving and facing problems,” he said. “It’s no wonder why so many coups succeeded here in Thailand. With the election coming, my suggestion is that the NCPO stops using this absolute power to turn Thailand more democratic.”
Bandit Chanrotchanakit, a political science lecturer from Chulalongkorn University, said that Article 44 is “bizarre” for its state-within-a-state nature.
“The Article 44 makes legal proceeding following the 2017 charter more reluctant,” Bandit said. “While Thailand already has a new charter, some cases influenced by Article 44 are still proceeding, such as those on last year’s referendum. This atmosphere tends to curb civil rights even more.”