The Morass of Thai Law
This week’s guilty verdict on tax evasion charges against Pojaman Shinawatra, the wife of the ousted prime minister Thaksin Shinawatra, has been described as politically loaded. Had the Criminal Court’s decision been otherwise, it would have also been so described.
The decision potentially signals that Thaksin himself may face similar sanction. Most immediately, in the Supreme Court’s Criminal Division for Holders of Political Positions, Mr Thaksin is facing charges of malfeasance in relation to a land purchase. The Supreme Court will also hear charges of alleged abuse of power during his time as prime minister in relation to tied soft loans granted to Burma which, allegedly, were to be used to purchase goods from Thaksin’s family company, Shin Satellite.
A guilty verdict against Thaksin could lead to the breakup of the governing coalition, as he is the essential ingredient binding it together. In that sense, cases now before the courts are also about Thailand’s future.
As the basket of cases against Mr Thaksin proceeds, claims and counter-claims will be made. Little of the commentary will focus on the facts of the various cases. Appeal will be made to broader concerns, including the legitimacy of the prosecution, unfair treatment (i.e., others have got away with similar actions), and the excessive power of the judiciary in the aftermath of the 2006 coup which overthrew the former prime minister.
There is now a concerted effort to discredit the many cases made against the former premier. This involves a co-ordinated and multi-pronged attack on the key sources of the current predicament of the Thaksin clan.
The first point of attack is the 2007 Constitution, which can be seen, quite reasonably, as the product of the illegitimate 2006 coup.
Before becoming prime minister, Samak Sundaravej indicated that he intended amending the constitution. On coming to power, in an apparent bid to extend his premiership by keeping Thaksin in the margins, Samak declared that amendments would be made late in the first term of office. He has now revised that timeline, saying amendments will be made soon.
Several weeks ago Samak commented that, “being a minister is like having one's leg in jail already.” It should be noted that Samak is also facing possible legal proceedings relating to alleged corrupt activities during his time as Bangkok mayor. His remark was a product of the challenges he and his government are facing
This includes the Constitutional Court’s ruling that the June Joint Communiqué between Thailand and Cambodia, regarding the application for World Heritage Status for the Hindu temple of Preah Vihear, was unconstitutional as the agreement was not deliberated in parliament. As a consequence of that ruling there are now attempts to impeach the entire cabinet.
There is also the possibility of the dissolution of the governing People’s Power Party. In July, former executive member People’s Power MP and House Speaker Yongyuth Tiyapairat as found guilty of electoral fraud by the Supreme Court. The consitution states that if a leader or executive member of a political party engages in electoral fraud the Constitutional Court may consider party dissolution. Several other coalition parties are facing the similar possibility of dissolution.
While some have seen the push for amendments as about self-interested survival (and there is surely an element of that), others rightly point to the fact that the current constitution is retrogressive in a number of respects and amendment, or even a new referendum, is necessary. They point, among other things, to the senate, half of which is appointed and to Article 309 which enshrines as law all actions, orders and declarations of the 2006 coup group.
A second point of attack is to bring into the question the status of various independent agencies of the state such as the National Counter Corruption Commission (NCCC), the auditor ceneral and the now defunct Asset Scrutiny Committee (ASC). Should such efforts succeed they would cast a cloud over the legality of proceedings against Thaksin and others, since it is these bodies that have gathered evidence against Thaksin.
In an attempt by pro-Thaksin forces to end legal proceedings based on the work of the ASC, the Constitutional Court was asked to rule on the status of the ASC. Opponents claimed that as it was set up by the coup group it was illegitimate. The Constitutional Court ruled that it was a lawful organization as the coup group wielded sovereign power in 2006 when the ASC was set up. That decision was premised on a long standing precedent, set in 1947 and 1952 that coups are legal once the resulting government has, de facto, established its right to rule. This then enshrines all coup decrees as legal. Of course, the new constitution (Article 309) also verifies that "fact" - hence the layered, complex mess that is Thai law.
Other institutions have been the target of pro-government attacks. Truth Today, a pro-government television aired on the national broadcaster, NBT, has raised questions about the purchase of land by the staunchly anti-Thaksin Auditor General, Khun Ying Jaruvan Maintaka, presenting satellite maps of the land and correspondence, and asking how the auditor general was able to purchase the land for a sizeable sum of money.
In the last week, Truth Today has also raised questions about the status of the NCCC, claiming it is illegitimate because its committee members were not sworn in by royal appointment. The program has reported positively on street protests by the 24th June Democratic Group, which is seeking to impeach the NCCC.
Another line of attack, indicated by the protests against the NCCC, is the street mobilisation of pro-government forces. So far, this has been fairly limited and resulted in some ugly incidents such as the brutal attack on the PAD rally in Udon Thani last week, which led to the hospitalisation of a dozen people.
This strategy may now shift a gear. Thaksin remains hugely popular, and as the courts close in, pro-Thaksin forces may resort to mass demonstrations.
In August 2001 mass mobilisation lent popular legitimacy to the controversial Constitutional Court decision to acquit Thaksin of corruption charges. That decision overturned the guilty verdict delivered by the NCCC in December 2000. In 2001, the opposition to Thaksin was minimal. With Thai politics now so polarised, the use of mass mobilisation to thwart the impending legal proceedings would undoubtedly take Thailand to the brink, for better or worse.
The Rule of Law?
Interpreting recent events is no easy task. There will be those who hold that the court cases are simply the unfinished work of the 2006 coup d’etat. They will hold that the courts are waging a merciless vendetta against Thaksin. Others will see the progressive legal entanglement of the former prime minister as a sign that the courts have listened to the King Bhumiphol’s famous speech in April 2006 that the judiciary should do its job. The courts subsequently declared the April 2006 election invalid, and the Constitutional Tribunal dissolved TRT in 2007. Now that some of the cases against Thaksin have reached the courts, they will argue the courts should be allowed to deliberate, free of political influence.
Neither position can be wholly sustained. The cases against Thaksin are indeed proceeding in a climate of political crisis, and political determinations cannot be ruled out. That the charges against Thaksin may hold some substance can not be prejudged, either.
The emergence of the rule of law, as we know it today, is broadly seen as consistent with the development of market societies where power is dispersed and no single protagonist can say “I am the state.” Thus, the generalised rule of law emerges properly in the dissolution of absolute monarchy, aristocratic privilege and brute force. It is often seen as one component of the bourgeois revolution in values that accompanied the rise of capitalism. Now, in one of those historical reversals that defy general theories of history, it would appear that one of Thailand’s most successful capitalists may well be the sacrificial lamb (innocent or guilty) on the altar of Thailand’s judicialisation of politics and the emergence of a potentially more robust rule of law.
In that respect, whether the law is an ass or an asset depends on where you stand, or fall.
Michael Connors teaches politics at La Trobe University. He is the author of Democracy and National Identity in Thailand (2007). He blogs at http://www.sovereignmyth.blogspot.com