Quis custodiet ipsos custodes?
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Quis custodiet ipsos custodes?

Quis custodiet ipsos custodes? or in English, “who will guard the guardians?” is a fundamental question in political philosophy.

The problem of “who will guard the guardians?” is one of the primary arguments behind the need for a separation of powers as Wikipedia explains:

Never give ultimate power to any one group; the executive, legislative, or judicial; have the interests of each compete and conflict. Each group will then find it in its best interest to impede the functioning of the rest and this will keep ultimate power under constant struggle and, thereby, out of any one group’s hands

In the Thai context, the problem of giving too much power to one group was seen as one the fundamental flaws of the 1997 Constitution. The argument was that the concentration of power in the executive, as existed under Thaksin, led to many abuses. The draft constitution aims to prevent this concentration of power in the executive as Thitinan recently stated:

“The first draft of the new charter is designed to prevent the monopolisation of Thai politics that was seen under overthrown prime minister, Thaksin Shinawatra’s five-year rule,” political commentator Thitinan Pongsudhirak noted in the ‘Bangkok Post’ on Friday.

So what was the drafters solution? Give more power to the judiciary and bureaucrats to control the elected politicians. Here is an English translation from the Highlights of the Draft Constitution B.E. 2550 from the CDA: 

Members of the Senate will be free from the dominance of political parties since they will be selected from provinces and, separately, from occupational groups (Section 106), not through election which is prone to political meddling. With the proposed selection process, Thai politics will cease to be the exclusive preserve of elected politicians, but will belong to the people from diverse backgrounds, areas, occupations, and genders while opening up opportunities to the socially underprivileged as well (Section 108 paragraph two).

COMMENT: Yes, “political meddling” no need for pesky elections.

Here is Thitinan (cache):

A seven-member panel comprising the heads of two state agencies, anti-graft and election commissions along with three courts are to vet the senatorial appointments. The 160 appointed senators _ one for each of the country’s 76 provinces and 84 others _ are supposed (but not guaranteed) to represent a diverse and balanced range of professions.

In turn, the Senate is tasked with endorsing the nomination and selection of the most senior members of these agencies. Such an arrangement may lead to quid-pro-quo outcomes and collusion in high places.

I have summarised the Senate provisions below:

From s106, there will be 160 Senators who will be appointed by HM the King from a recommendation/offer from the Selection Committee.

From s107, the Selection Committee shall comprise of the President of the Constitution Court, President of the Election Commission, President/Chairman of the National Counter Corruption Commission, Parliamentary Ombudsman, Auditor-General, one representative of the Supreme Court, and one representative of the Supreme Administrative Court.

From s108, the Selection Committee will select from the Senators as follows (1) select one appropriate person from each province from a pool of applicants, and (2) selection appropriate persons from names recommended/offered from various organisations (องค์กรต่าง ๆ) in the academic, private, government, professional, and other sectors.

In choosing the Senators, the Selection Committee shall take into account their knowledge and expertise or experience who will help carrying out the work of the Senate. When selecting those with knowledge, it should be knowledge from different fields. Also, equality of the sexes and giving opportunities from those lacked opportunities.

NOTE: Under s256, government officials can’t be Senators so I assume what they mean by the “government sector” is retired government officials.

COMMENT: So will guard us from the guardians? As Thitinan states they choose each other and are accountable only to each other.

Even Ajarn Nidhi is quick to express doubts about putting too much faith in the judiciary:

“The judges, in terms of their mentality and style of work, are no different from other government officials. I’m criticising the courts in Thailand … I think the development of Thai judges cannot follow either domestic or global trends,” Nidhi said. “The judges are no more progressive than other bureaucrats. I don’t know if they’re more astute.”

 Thai Rak Thai is also not happy:

“They allow people to elect their own MPs: it’s odd they don’t trust them to elect their own senators. Let me ask whom you trust more: seven people comprising the president of the Constitution Court, the head of the Election Commission, the Ombudsman … [etc]? How capable will they be, and what selection criteria will they use?” Pongthep [Thepkanjana, a caretaker deputy Thai Rak Thai Party leader] asked.

Suriyasai Katasila, secretary-general of the Campaign for Popular Democracy:

…the charter had both strengths and weaknesses but the task ahead was to raise the level of the people’s participation in politics. He attacked the increased authority and role of the judiciary as a weak point of the charter.

I don’t believe the courts are the answer to a sustainable solution and don’t believe the courts can be accountable under the charter.”

An academic on one of the most serious problems behind the new powers which will be held by the judiciary:

“They are giving power to the courts and in the end things will not be negotiable, because they will claim to be doing it in the name of the King and those criticising the court may be held for contempt of court,” said Naruemon Tabchumpon, a political scientist at Chulalongkorn University.

COMMENT: Courts are of the view that they are not subject to criticism and if you criticise them, you will be subject to contempt of court.

Finally, and far from least as AFP reports:

The party objected to the appointed Senate, the redrawing of constituencies, and an article which states that if political deadlock occurs, the prime minister must meet with Senate members and judges to resolve the crisis.

I have summarised section 68 below:

If there is a national crisis or a political situation where it is necessary, there shall be a meeting of the following, the PM, President of House of Representatives, President of the Senate, Leader of the Opposition, President of the Constitution Court, President of the Supreme Court, President of the Supreme Administrative Court, and President(s) of Independent Agencies under the Constitution, to consider ways to solve the problem.

COMMENT: This is it. Will they have a vote to decide? Is a simple majority needed or must it be a unanimous decision? The bureaucracy and the judiciary will dominate. Could they dissolve Parliament? What are the limits on their power?

What kind of “noble lie” will the judiciary and the bureaucrats be told?

The essential problem was first posed by Plato in the Republic, his work on government and morality. The perfect society as described by Socrates, the main character of the work, relies on laborers, slaves, and tradesmen. The guardian class is to protect the city. The question is put to Socrates, who will guard the guardians? or, who will protect us against the protectors? Plato’s answer to this is: they will guard themselves against themselves. We must tell the guardians a noble lie. The noble lie will inform them that they are better than those they serve and it is, therefore, their responsibility to guard and protect those lesser than themselves. We will instill in them a distaste for power or privilege, they will rule because they believe it right, not because they desire it.