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Some fear Thai judges
are overstepping their bounds — but that may be exactly what the
junta wants.
What a difference a
year makes. On May 8, 2006, Thailand’s Constitutional Court
made a landmark decision to void a boycotted election held the
previous month in which Thaksin Shinawatra’s Thai Rak Thai
party won a decisive victory.
At the time, many here
lauded the judges for stepping up and checking the power of Thaksin’s
so-called “parliamentary dictatorship.” But now many fear
the men in robes may be amassing too much power.
The controversial
ruling on the election came just two weeks after King Bhumibol
Adulyadej gave an unprecedented speech to the country’s top
judges. With the prospect of a one-party Parliament looming due to a
boycott from the three major opposition parties, the king instructed
the judiciary to sort out the mess.
“Judges have the
right to speak out and make a ruling,” Bhumibol told the
Supreme Court judges. “Therefore I would like to ask you to
consider, consult with other judges of other courts such as the
Administrative Court, about how to work it out and do it quickly.
Otherwise the country will collapse.”
At the time, Thaksin’s
opponents (those who opposed a coup, anyway) saw the judicial branch
as the only counterbalance to the premier’s stranglehold over
the executive and legislative branches. With a new mandate from the
king, the country’s supreme moral authority, the judges wasted
no time.
The heads of the
Supreme, Administrative and Constitutional Courts convened for an
unusual extrajudicial summit to solve the nation’s political
problems. Soon they voided the April 2 election in a decision both
widely expected and legally dubious. Not long after that, the court
called on the Election Commissioners to resign. When they refused,
the Democrat Party sued the commissioners for malfeasance, and the
Criminal Court promptly sentenced the commissioners to four years in
jail and denied them bail — a stunning move that effectively
forced them out.
A new Election
Commission comprising four judges and an attorney general was then
installed to organize a new election, but before that could happen,
royalist factions in the military stormed Bangkok and deposed
Thaksin.
Although the military’s
power increased with the putsch, the legacy of the king’s April
2006 speech lives on. The draft constitution seeks to cement a new
political role for judges by giving them a host of new
responsibilities, including helping to appoint members to the Senate,
the Ombudsman's Office, the National Human Rights Commission and the
State Audit Commission — all in addition to previous duties to
help select the Election Commission, National Counter Corruption
Commission and Constitutional Court. Moreover, the draft calls for
the Supreme Court president to meet with other judges, leading
political figures and heads of independent bodies in times of
national crisis.
Prasong Soonsiri, who
heads the Constitution Drafting Council, told reporters the drafters
wanted to enlarge the judiciary’s role so the king would not be
troubled. The CDC was simply following the king’s advice in his
April 2006 speech, he said.
But now, for the first
time since the judges moved out of the courtroom last year, the
concept of an all-powerful judiciary is receiving sustained
criticism. Chang Noi, a column in the English-language daily The
Nation, led the charge with a biting and comprehensive critique.
“While the last charter was dubbed the People's Constitution,
this one deserves the title of the Judges’ Constitution,”
Chang Noi wrote. “Under this draft, the three very important
persons are not the prime minister, president of parliament, or even
commander-in-chief of the Army, but the heads of the Supreme,
Administrative, and Constitutional courts.”
Even some judges have
expressed doubts about playing a political role. “It is
inappropriate to make judges become involved [in politics] because it
will lead to loss of independence and fairness of the courts,”
Srawuth Benjakul, deputy secretary of the Office of the Courts of
Justice and a court spokesperson, told reporters.
The discussion over how
much power the courts should have can be quite sensitive since the
king has spoken directly about the topic. “You have made an
oath to work in my name, and that is very important to me
personally,” the king told new judges in a speech on April 9.
“If you do your duties right, I will gain face. If you make
mistakes, I will be damaged. I hope you will give your very best.”
These words can be
interpreted in any number of ways, of course. Pro-democracy legal
experts tend to believe judges should keep to the courtroom, but
other members of the power elite believe the appointed arbiters of
the law are more fit to run the country than so-called “evil”
politicians.
Wicha Mahakhun, a
former judge and current constitution drafter, provided a remarkable
glimpse into this line of thinking in a report by The Nation.
“People,
especially academics who want to see the constitution lead to genuine
democracy, are naïve. We all know elections are evil,” he
was quoted as saying. “I would like to recall HM the King’s
speech here. On April 9, His Majesty told the judges to perform their
duties firmly and without caring what others might say. His Majesty
said if the courts did not support good people, society could not
survive. His Majesty said it was most imperative [for judges] to
ensure justice… Even HM the King places trust in the judges;
would you condemn them?”
The implication is
clear: Those who oppose an expanded judiciary are disloyal to the
monarch — the ultimate sin.
Despite the rhetoric,
it’s unlikely those charges will intimidate many experts. For
one, says Giles Ungpakorn, a political scientist at Chulalongkorn
University, the king’s speech in 2006 was primarily a reaction
to widespread calls for him to replace Thaksin by unilaterally
appointing a new cabinet under Article 7, a vague clause in the 1997
Constitution. The king forcefully debunked this in his address.
“I have suffered
a lot,” Bhumibol said in April 2006. “Whatever happens,
people call for a royally appointed prime minister, which would not
be democracy. If you cite Article 7 of the constitution, it is an
incorrect citation. You cannot cite it. Article 7 has two lines:
Whatever is not stated by the constitution should follow traditional
practices. But asking for a royally appointed prime minister is
undemocratic. It is, pardon me, a mess. It is irrational.”
In the speech, the king
essentially called for a constitutional solution to the political
stalemate. What resulted, however, was a military coup that turned
the tables on the country’s fragile democracy.
“The drafters
will claim they are following the policies of the palace, but it’s
much more complicated than that,” Giles said. “Moreover,
the monarchy is just one institution. There are 65 million other
people in Thailand who deserve an equal say in how the country is
run.”
Vorajet Pakirat, a law
lecturer at Thammasat University, added: “I think the king
wanted judges to perform a duty unique to the situation in April last
year. But no one can say the king would like to expand the power of
judges in this constitution.”
Giles said the whole
justice system should be overhauled, from the police to judges to
bureaucrats. He advocates trials by jury and elections for judges to
increase public accountability.
“The constitution
has a problem right from the start,” he said. “Giving
power to unelected civil servants who tend to be very conservative is
a step backwards.”
Of course, there is
still time to make changes to the constitution, and it appears that
some judicial powers will be scaled back. Jaran Pakdithanakul,
deputy chairman of the CDC and a former Supreme Court official who
played a key role in the extrajudicial calls for the election
commissioners to resign last year, conceded last week that the
balance of power could be thrown off if judges have too many powers
and responsibilities.
Even so, that doesn’t
mean certain judges are finished in the quest to sort out the
country’s political situation. On May 30, the military-created
Constitution Tribunal will decide whether to dissolve Thailand’s
top political parties: Thaksin’s Thai Rak Thai and the Democrat
party.
Perhaps more than
anything else, the Constitution Tribunal represents the ultimate
amalgamation of military and judicial power. The body, formed by the
military in the immediate aftermath of the coup, comprises five
Supreme Court judges, the Supreme Court president as chairman and the
Supreme Administrative Court president as deputy chairman.
Many legal experts see
the dissolution case as a sham. Indeed, many wonder how a body
created by those who overthrew Thaksin has any right to terminate
political parties for allegedly attempting to overthrow democracy.
And especially to do so for violating a constitution the junta
leaders discarded?
“The Constitution
Tribunal is illegitimate and the case is completely political,”
said legal expert Kanin Boonsuwan, who helped draft the 1997
Constitution. “Judicial powers have gone too far already; the
judges are abusing their power and independence. This is not only
about dissolution, but the future of democracy in Thailand.”
It’s hard to say
how the country will react if both main parties are dissolved. Some
analysts say many people already expect Thai Rak Thai to be
dissolved, since that has been the mission of the coup makers since
they fired up the tanks on September 19.
Indeed, one of the
junta’s first orders after seizing power was to ban executive
members of dissolved parties from politics for five years.
Previously, the law said executives of dissolved parties could still
run in an election but they couldn’t form a new party or sit on
a party board. It remains to be seen if this will stick.
Others who oppose the
interim government hope the dissolution case serves as a catalyst for
protests against the junta. Chaturon Chaiseng, Thai Rak Thai’s
leader after Thaksin stepped aside, said his party would accept the
tribunal’s verdict. The Democrats also don’t plan to
protest. Some analysts expect former Democrat leader Chuan Leekpai to
form another party if the Democrats are done away with. Thai Rak Thai
members will also likely find new homes.
This may suit the
ruling elite just fine, but it remains to be seen if the general
public will protest the consolidation of power. So far, they have
shown a high tolerance for the coup group, even though criticism
against Prime Minister Surayud Chulanont has grown.
Thais must decide if
they want so-called “good” appointed elites or “evil”
elected politicians running the country when they vote in a
referendum on the constitution in September. As the lengthy charter
now stands, the elites would prove victorious.
“The draft
constitution doesn’t trust the people,” said Vorajet from
Thammasat. “If we use it, then people with a high status, like
judges and top bureaucrats, can get seats in the Senate and
independent bodies. These people think that Thai politicians are bad,
and they are good. It contradicts the whole principle of democracy.”
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