The Rise of Thailand’s Third Branch

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.”