Changing nature of the relationship between pro-Thaksin governments and the judiciary
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Changing nature of the relationship between pro-Thaksin governments and the judiciary

This post will look at a judicial coup and has adapted from previous posts.

1. 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.

2. 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 (anti-Thaksin critic 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 amongst 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.

3. It was 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 herehere, 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.

Then, of course, you had the dissolving of the pro-Thaksin PPP and two other parties in the PPP coalition 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 so 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.

4. Since the 2011 election, we so far have had a shift. 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.  While Yongyuth (former Interior Minister) lost his position, none of the cases have directly affected the government stability.

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.

In addition, for the constitutional amendment last year while 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”, the Court eventually ruled against the petition although advised that a double referendum should be held including a referendum before the process starts to ask people whether they want amendments and where it is uncertain whether you need a 50% of voting population turnout – which opposition could easily defeat by getting their supporters to boycott – so the government moved to the amending by issue per parliament. However, this was not a judicial coup as such.

Similarly, while last week’s Constitutional Court decision in regards to rejecting the substantive provisions regarding the amendment to a fully-elected Senate, was poorly reasoned, it did not reach the level of a judicial coup. The decisions since 2011 are – for now at least – in contrast to the 2006-2008 decisions. They are about restricting the activities of a pro-Thaksin government – checks-and-balances – so to speak, but not about removing the government. As summed up by Bangkok resident, Marc Saxer, who wrote on his Facebook page in a personal capacity after the verdict that:

Thaksin can continue to govern with limited authority, but will not be allowed to expand his power. Politically, this reflects the stalemate of the past years, with no side having enough power to decidedly win the conflict.

BP: However, over the last few days, we have seen protests – by the Civil Movement for Democracy (CMD)** far greater in number at the peak than the 2008 protests. We are talking more than 3 times the 2008 PAD protests. While the numbers since Sunday have dropped significantly – although a number of people appear to be on the streets today – the size of the protests on Sunday seems to have spurred on Suthep. It took 6 months from the start of the PAD protests in 2008 until the judicial coup option was realised and then the formation of the Abhisit-led government in the military barracks. For 2013, we are in fast-forward mode with an accelerated schedule. Suthep had set a 3 day deadline (today is the 3rd day) although he has conceded yesterday to Reuters that “[g]etting rid of the Thaksin regime is not easy” and the demonstration “might be longer” than the three days originally planned.

Nevertheless, why is Suthep pushing so fast and so quickly? Is it because he believes – or even perhaps because of his links to some important people he has been told  – such actions are necessary in order to get the nuclear option whether this is an independent organization coup (with accelerated investigation of one week for 312 MPs and Senators with the MACC deeming there is a prima facie case in each instance and then ordering the suspension of the 312 MPs and Senators) OR a judicial coup?  Or is it the Democrats realize that winning another election is virtually impossible so they have gambled and continue to double down on the Suthep option?

Will try to look at some scenarios in a later post including what Suthep is stating he wants…

*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. The current government is also trying to amend Section 190 although this will almost certainly face a Constitutional Court challenge…

**The protesters finally have a name..