US embassy cable - 05BANGKOK4946

C O N F I D E N T I A L SECTION 01 OF 02 BANGKOK 004946 
 
SIPDIS 
 
E.O. 12958: DECL: 08/01/2015 
TAGS: PGOV, PHUM, PTER, TH, Emergency Decree 
SUBJECT: THAILAND: CABINET SECRETARY-GENERAL DISCUSSES 
RECENT EMERGENCY ORDINANCE WITH AMBASSADOR 
 
REF: (A) BANGKOK 4901 (B) BANGKOK 4864 (C) BANGKOK 
     4697 (D) BANGKOK 4653 (E) BANGKOK 4596 
 
Classified By: AMBASSADOR RALPH L. BOYCE.  REASON: 1.4 (D) 
 
1.  (C)  Summary:  During tea with the Ambassador on July 28, 
RTG Cabinet Secretary-General Dr. Borwornsak Uwanno took 
issue with critics of the recently enacted emergency decree, 
saying that it contained legal safeguards and will be applied 
sparingly and only when absolutely necessary.  Dr. Borwornsak 
said that the constitution was alive and well under Thaksin 
and that characterization of him in some quarters as being a 
constitutional or parliamentary dictator were untrue and 
unfair.  He acknowledged that Thaksin has lost significant 
political support since his massive election victory in 
February, but added that the Prime Minister would still win 
three-fifths of the Assembly's seats if an election were held 
today.  End Summary. 
 
EMERGENCY ORDINANCE CONCENTRATES EMERGENCY POWER IN PM'S 
OFFICE 
 
2.  (C)  The Ambassador invited RTG Cabinet Secretary-General 
Dr. Borwornsak Uwanno for tea on July 28 to discuss recent 
political events, especially the issuance of an emergency 
decree by the cabinet last month in the wake of more violence 
in Thailand's south.  Borwornsak noted that the decree is 
now, with palace approval, a "Royal Ordinance."  Though he is 
widely believed to be a co-drafter of the original decree, 
Borwornsak denied this, crediting Deputy Prime Minister 
Wisanu Kruangam as the primary author.  (Note:  Borwornsak a 
few minutes later told the Ambassador that both he and Wisanu 
had spent hours correcting and polishing the draft decree 
before its release.  End note.)  Borwornsak said that the 
ordinance could be used to cover a variety of emergencies 
involving national security, economic emergency or national 
disasters, such as last year's tsunami.  In effect, the 
ordinance concentrates a number of emergency powers, 
previously dispersed around various ministries, in the office 
of the Prime Minister, he explained. 
 
ASSURES THAT EMERGENCY ORDINANCE SUBJECT TO CONSTITUTIONAL 
SCRUTINY 
 
3.  (SBU)  Borwornsak pointed out that the ordinance is 
subject to Section 219 of the Constitution, which states that 
prior to approval of the emergency decree by Parliament, 
one-fifth of the House or the Senate can petition the 
respective body presidents to claim that the original reason 
for the decree was not a valid "emergency" and thus must be 
referred to the Constitutional Court.  Even after Parliament 
approved the decree, it could still be referred through the 
Ombudsman to the Constitutional Court for examination of its 
provisions, Bowornsak said. 
 
4.  (C)  Borwornsak said that civilians who believe they have 
been mistreated under the ordinance can claim civil damages 
if it can be proven that authorities did not act in good 
faith, discriminated against the individual or acted 
disproportionately to a perceived threat.  Though it is up to 
the detainee to provide proof that government personnel 
abused the ordinance, the determination of whether the 
government acted in "good faith" is rendered through an 
"inquisitorial" court process, he added. 
 
POLLS SHOW PUBLIC SUPPORT FOR EMERGENCY ORDINANCE 
 
5.  (C)   The Ambassador raised the continuing accusations -- 
by the political opposition, the media, and human rights 
groups -- that the ordinance gave the Prime Minister the 
potential to seriously undermine civil rights in Thailand. 
Borwornsak replied that he was not surprised over criticism 
of the ordinance by the PM's detractors.  However, he 
emphasized, the articles of the ordinance have not been used 
to date.  He also pointed out that polls report that over 80 
percent of the Thai people, including those in the affected 
southern provinces (Narathiwat, Yala and Pattani), support 
the new ordinance.  In an aside, Borwornsak opined that with 
the intense amount of international and domestic scrutiny of 
the measure, local authorities may well hesitate to use the 
powers authorized by the ordinance.  He added that he had 
sent a copy of the draft to National Reconciliation 
Commission (NRC) Head and former Prime Minister Anand 
Panyarachun an hour before the Cabinet saw it.  Shortly 
afterwards Anand telephoned Thaksin to discuss the decree and 
suggest easing some of the measures related to detention and 
censorship.  Borwornsak claimed that some members of the NRC 
have their own agendas; he cited the call by a few members 
for the RTG to pressure Cambodian authorities to release 
several Thai Muslims being held on suspicion of having 
terrorist links. 
 
REJECTS ACCUSATIONS THAT THAKSIN IS "PARLIAMENTARY DICTATOR" 
 
6.  (C)  Borwornsak dismissed accusations that Thaksin's huge 
(377 of 500 seats) majority in parliament gave him virtual 
dictatorial powers.  Rather, Borwornsak said, the 1997 
Constitution (which he helped to draft) provides for an 
apolitical Senate with the power to impeach, eight 
independent watchdog bodies including the Ombudsman, the 
Constitutional Court and the National Counter Corruption 
Commission (NCCC), and the right of the opposition to open 
debate in the Parliament.  The press is free and the public 
has the right to assemble, he added.  He admitted that there 
have been some, such as the resignation of the entire NCCC 
for financial irregularities.  If there is a failure of the 
Constitution, it is a failure of society, Borwornsak 
stressed.  "You can't legislate individuals."  As for the 
Prime Minister's current popularity, Borwornsak admitted that 
it had slipped in the six months since his crushing victory. 
He said that Thaksin himself told him that if the election 
were held today, he would only gather 300 seats rather than 
the 377 seats he won in February. 
 
7.  (C)  Comment:  Borwornsak met with the Ambassador several 
hours before the televised discussion of the ordinance 
between Thaksin and Anand (ref. A).  Borwornsak put forward a 
"let's wait and see" position, suggesting that critics will 
find that the new emergency ordinance will neither be as 
draconian nor applied as lavishly as they fear.  He admitted 
that the ordinance still gives the Prime Minister wide 
latitude to apply the measures nationwide, but hinted that 
sensitivities abroad and at home may hold back full 
implementation of the ordinance.  That said, if another 
significant security incident occurs, such as the multiple 
attacks in Yala last month, the government may not hesitate 
to act in accordance with the ordinance's measures -- knowing 
full well that such actions will invite criticism from some 
quarters.  End Comment. 
 
 
BOYCE