Is a judicial coup in Thailand imminent?
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Is a judicial coup in Thailand imminent?

BP has already blogged on what BP views as the very low likelihood of a military coup. This post will look at a judicial coup. We have already seen the increased role that the judiciary has played in politics over the past few years, but we really need to go back to the Thaksin concealment case in 2001 for the first time in “modern, post-1997” Thai politics where the court intervened politically and gave Thaksin the benefit of the doubt.

Then, you can say there was a lull until 2006, but after HM the King’s speech in 2006 the judiciary’s role become more prominent. (In 2007, a former judge and then constitutional drafter stated “Even HM the King places trust in the judges; would you condemn them?”). The Court invalidated the April 2006 election and then judges refused to grant bail to the election commissioners (Kaewsan even criticized that decision) as the commissioners refused to resign. The result of spending time in jail was that the commissioners lost their positions and they were granted bail after that.

In 2007, after the coup, we saw a changing in the balance of power in Thailand with the judiciary being given more powers under the 2007 constitution including being on committees to appoint Senators (who then in turn confirm judges) and members of independent agencies. Judges also choose against themselves who will fill the top positions in the judiciary.  This meant that judges were no longer exercising only judicial power, but judges were still able to use  contempt of court to limit criticism (also see these posts about contempt of court here and here )*. Nevertheless, this didn’t stop the judiciary from making public comments criticizing politicians and the political system and moved beyond appearing as merely impartial observers who are above politics.

With all this power though, you still had the question on, who will guard our judicial guardians? The essence of the reason for separation of powers is as explained by Wikipedia that you “[n]ever give ultimate power to any one group; the executive, legislative, or judicial”. The 2007 Constitution gave, in BP’s opinion, too much power towards the judiciary.

It was though in 2008 that the judiciary really started to assert its authority. You had the Samak case where Samak lost his position as Prime Minister because of his role on a cooking show deemed him to be an employee of the show and this was contrary to the Constitution- see posts here, here, and here. Then, you had the Constitution Court apply a very broad meaning to Section 190 of the Constitution when they  ruled that the Communique with Cambodia on Preah Viehar was a treaty which needed parliamentary approval and hence as it didn’t have such approval, it was unconstitutional. This surprised the Foreign Ministry who had been approving the signing of MOUs for years and eventually the broad interpretation caused so many problems with even minor agreements needing parliamentary approval that this provision of the Constitution was amended last year. Yes, interpretations have consequences. Even now, there are concerns that things are still uncertain.

Former Foreign Minister and now ASEAN Sec-Gen Surin as quoted in the Bangkok Post:

A lack of detail as to which agreements require parliament scrutiny has been holding back Thailand as the government has failed to make decisions out of concerns of violating the charter.

“It is barring Thailand from taking a leading role. There are delays in a number of issues because the [country’s] leaders do not make decisions and have to ask for parliamentary approval.

“These issues do not require legal amendments, just ministerial directives. In the eyes of other countries, Thailand lacks a clear international policy and continuity in [following up on] agreements,” Mr Surin said on the sidelines of the Asean Economic Ministers meeting held from Tuesday until today in Indonesia.

BP: The situation is that a Minister or the Prime Minister goes off overseas for a bilateral or multilateral meeting, but there is a fear of signing a minor agreement or MOU lest it be deemed to be a treaty – which legally is a different type of document – and the signing being deemed unconstitutional and this leading to criminal charges. In essence, you have few decisions being made out of fear on what may happen.**

Then, of course, you had the dissolving of the pro-Thaksin PPP and two other parties in December 2008 and banning of executives of each party. The dissolution happened so quickly with the court restricting testimony from the defense and holding the final hearing in the morning and writing the judgment in less than an hour delivering that afternoon. This directly led to the downfall of the PPP-led government as it allowed Newin and MPs in his faction to leave the Thaksin fold (as they were no longer PPP MPs as PPP had been dissolved, they could legally join a new party without restrictions which wouldn’t have been possible without the dissolution). This decision was the actual judicial coup – a coup requires the removal or effective removal from power. The fix was clearly known as a Wikileaks cable entitled “THAI PRIME MINISTER SOMCHAI DISREGARDS ARMY COMMANDER’S SUGGESTION HE RESIGN” (08BANGKOK3143) dated October 17, 2008 showed.  The key paragraph is:

6. (C) Anuporn Kashemsant, a foreign liaison officer for the Queen in the Principal Private Secretary’s office, remarked to us October 17 that various political maneuvers were ongoing. He said ”a coup like what happened September 19, 2006 is not one of the options” for resolving Thailand’s political crisis, because the military had proven it was incapable of running the country. His qualification evoked the remark of former Prime Minister Anand Panyarachun on October 16 (ref A) to Charge that there would not be ”a coup in the traditional sense of the word.” Anuporn hinted that significant developments likely would take place in the coming days, but refused to predict what might occur, beyond saying there were two possible paths forward.

BP: Indeed, there was not a coup in the traditional sense of the word, but there was a judicial coup about 6 weeks later…Although, of course in a decision in 2009, we see that politicians such as Newin who had by then left the Thaksin fold were acquitted on corruption charges in 2009.

Even though the judiciary has more power, there has been little public discussion about our new judicial guardians. This is despite surveys showing widespread payment of money to judges in cases and whether this is a good thing. The judiciary can come under all kinds of influence, but there is little mention in the media about corruption in the justice system. Surveys of foreign businessman on corruption showed concerned about the expanded powers for the judiciary. Given the increased role of the court and many controversial decisions, BP was not surprised when a survey in 2011 found that 57% of those surveyed had little or no confidence in the Constitution Court.

It is in the above context that things are currently being played out. Talk of deals and with the introduction of the reconciliation bills and the constitutional amendments, it appeared things were on track, but things appeared to quickly fall apart. On Friday June 1, the Constitution Court accepted a petition to review amendments to the constitution on the grounds that the amendments have (or potentially will in the future?) breach Section 68 of the Constitution which provides that “No person shall exercise the rights and liberties prescribed in the Constitution to overthrow the democratic regime of government with the King as Head of State under this Constitution”.  After the acceptance, we saw concern expressed about another judicial coup.

Daniel Ten Kate for Bloomberg:

Another ‘‘judicial coup” may take place before street protests spin out of control, a possible pretext for another military intervention, according to Paul Chambers, director of research at the Southeast Asian Institute of Global Studies at Payap University in Chiang Mai, a city in northern Thailand.

“If things continue as they are right now, then Yingluck’s days are numbered,” he said. “If Pheu Thai steps back and ends the attempts to change the constitution, then Yingluck can stay in office perhaps until her term is over.”

Nirmal Ghosh in the Straits Times:

Meanwhile, efforts to amend the Constitution have stalled after the Constitution Court accepted a petition from the Democrat Party and four individuals questioning the legality of the government’s action.

“The ‘judicial coup’ has begun,” a Puea Thai minister said in a text message, using a common term to describe a stream of court judgments against Thaksin and his parties since 2007.

“And they (the PAD and Democrat Party) are trying to stir up violence so that the army can step in,” the minister added.

BP: Since the court’s acceptance of the petition there has been widespread criticism of the court by legal experts. BP has summarized some of the criticisms here. BP has blogged on the defence of the Constitution Court provided by noted Thaksin opponent, Kaewsan. BP has blogged on the Constitution Court’s defence of the acceptance of the petition and also blogged on the Attorney-General stating that the amendments don’t breach the constitution. BP has also blogged querying why the Court has changed its interpretation of the wording in Section 68 from a previous case where the Court rejected to accept a petition directly against the Democrats.

As blogged on the court’s acceptance and the likely outcome:

The amendments do guarantee – actually they are much broader than the current guarantee – that the monarchy will not be amended.

...Simply put, it is one thing to delay the amendments. It is another to go beyond that. The Court in its defence did not actually state what evidence of a threat there was. They have just said people said there was a threat so we would look into that. Based on the evidence presented, and the actual wording of the amendments is the most relevant, there is no evidence of a threat to overthrow the monarchy. Unless there is some no evidence introduced – exactly what is even hard to imagine – it will be very difficult for the court to find an argument to stop the amendments, let alone, do something beyond that like dissolving Puea Thai and banning its executives.

The court then is much more likely to (a) either dismiss the petitions, or (b) look for a face-saving move, such as, require a more strongly worded guarantee. This then provides the rationale for the court accepting the petition in the first place (and hence avoiding criticism of the court for delaying the amendments). It would mean we have additional delays in the amendments which was the whole point of the entire exercise in the first place. The government is then put in a position of defying an actual decision of the court – which is different from an actual order – as opposed to complying and there only be a further delay.* The easier thing to do for the government then is to comply…

BP: Now, you may say, well BP look at what happened in 2008. Simply put, the process was unusually sped up in 2008, but the major problem then was the harsh law. BP does not think you can say the court’s interpretation of the law was unreasonable. The law was designed for the precise propose of dissolving parties and banning executives. This time around to get the judicial coup removing Yingluck and PT from power on the grounds of Section 68 would mean the Court would need to disregard the the actual wording of Section 68 making such a decision a farce. BP thinks this is not that easy to do and the court is unlikely to go down that road.

Not every hiccup for the government will result in a judicial coup. For example, just after last year’s election, when the Election Commission was slow to endorse Yingluck after the 2011 election there was speculation that we are embarking on another judicial coup. As noted at the time, BP thought such claims were, as they turned out to be, premature. Then, you had the Constitution Court accepting the petition to review the constitutionality of executive decrees transferring 1997 financial crisis debt to the Central Bank & authorizing 350 billion baht in loans for flood recovery, but the Court then ruled them constitutional.

Hence, merely because the court has accepted the petition doesn’t mean the court will permanently block amendments or dissolve Puea Thai. The court may do so, but BP sees only a 25% chance of that happening. A temporary delay or some other face-saving measure is more likely.

There are many other cases that have recently cropped up including the Alpine Land case (mainly affecting the Interior Minister), the Ombudsman “ethics” investigation into Yingluck and other politicians etc.  They may eventually develop into cases where the government can be removed, but there do not appear to any imminent serious threats on the horizon although things are less certain than they were just a month ago and can change at anytime.

*Although, returning to the present day,  the court’s acceptance of the petition against the constitutional amendments has resulted in significant criticism, but so far contempt of course has not been raised, as far as BP is aware so perhaps this is less of an issue now.

**A diplomat told BP of an instance where a minor donation was to be made, but the donating country required a MOU to be signed on the Thai side ensuring that the donation was used properly. And then things hit a roadblock as no one from the Thai side wanted to sign the MOU…