On June 1, 2012, Thailand’s Constitutional Court took the extraordinary step of issuing an injunction, quickly shown to have violated the law and exceeded the bounds of the Court’s constitutional authority, 1 ordering the National Assembly to cease all deliberations on a proposed amendment to the 2007 Constitution, pending a review of the amendment’s constitutionality. The injunction was issued on the same day when a few hundred activists from the so-called People’s Alliance for Democracy (PAD), in cooperation with members of the opposition Democrat Party, blockaded all roads to Thailand’s parliament, preventing the House of Representatives from meeting to debate a controversial “Reconciliation Act.” The previous two meetings of the House had been disrupted by the PAD’s threat to storm the halls of the National Assembly, and by the intemperate outbursts of Democrat Party members of parliament, some of whom physically assaulted the House Speaker and other parliamentarians. Once again, the PAD, the Democrat Party, and the Constitutional Court have teamed up to delegitimize the democratic process, prevent the representatives of the Thai people from fulfilling their legislative functions under the Constitution, and lay the groundwork for the removal of a duly elected and legally constituted government, whether by military force (as in 2006) or by judicial intervention (as in 2008).
The current government, led by Prime Minister Yingluck Shinawatra, came to office last year on the strength of the landslide victory scored by the Pheu Thai Party in the general election of July 3, 2011. Pheu Thai is the successor of Thai Rak Thai (TRT) and the People Power Party (PPP), parties which had won, by wide margins, each of the legislative elections held in 2001, 2005, 2006, and 2007, only to be later
From the beginning of the 2011 election campaign, speculation has been rife that Pheu Thai might suffer the same fate as its predecessors, in the event of victory at the polls. As expected, judicial efforts to overturn the election began before the final tallies were in, as the opposition Democrat Party filed a number of complaints requesting that the courts initiate proceedings leading to Pheu Thai’s dissolution. 4At first, these efforts seemed to yield little effect. The Democrat Party has been the principal beneficiary of the judicialization of politics, and the politicization of the judiciary, that has characterized the period since the military coup of September 19,
2006. It is only thanks to a series of biased judicial rulings, often handed down in a context where the PAD was wreaking havoc in the streets, that the Democrats were able to form a government in 2008, despite not having won an election in twenty years. Following the 2011 elections, however, the courts appeared reluctant to intervene, perhaps in recognition of the overwhelming mandate Pheu Thai had received at the ballot box. At the same time, the decision to let the election results stand was understood by supporters of the government to signify little more than a temporary truce, as cases that could lead to Pheu Thai’s dissolution slowly made their way through the process. Given the risks that staging a military coup would comport, and the Democrat Party’s track record of losing elections, the Constitutional Court remained the best option available to those seeking to remove the government elected by the Thai people in 2011.
One of the complaints filed by the Democrat Party after the 2011 election sought the disqualification from the House of Representatives of Jatuporn Prompan, elected as a candidate on Pheu Thai’s national party list. Jatuporn, a long-time political activist and incumbent legislator, was alleged to lack the qualifications to serve in the House of Representatives, owing to his failure to vote in the 2011 elections. On election day, Jatuporn was held in Bangkok’s Remand Prison on charges of terrorism and participation in an illegal assembly, charges stemming from his leadership role in the “Red Shirt” protests of March-May 2010. While he had previously been freed on bail, on account of his status as a member of parliament, bail was revoked as soon as the former government called new elections and dissolved the House of Representatives. Jatuporn’s imprisonment followed a complaint lodged on behalf of the Commander-in-Chief of the Royal Thai Army, alleging the commission of acts of sedition and lese majeste during a speech given on April 10, 2011, on the occasion of the first anniversary of a military crackdown that had taken the lives of twenty Red Shirt protesters the year before. The specious charges were later dropped. Despite repeated requests, the Criminal Court denied Jatuporn temporary release from custody in order to vote in the July 3, 2011 elections.
The case that could potentially lead to the dissolution of Pheu Thai in connection with Jatuporn’s disqualification is still months away from reaching the Constitutional Court. It is perhaps as a result that the Constitutional Court, faced with the necessity of blocking the enactment of a central plank of Pheu Thai’s campaign platform, had to resort to issuing an injunction prohibiting the parliament from continuing deliberation on amendments of the Constitution, even at the cost of reaching far beyond its constitutional authority. Ominously, the Constitutional Court announced its decision to review, under Article 68 of the Constitution, whether the proposed constitutional amendments constitute an attempt by Pheu Thai and its coalition partners “to overthrow the democratic regime of government with the King as Head of State.” Any such finding would empower the Constitutional Court to order the dissolution of Pheu Thai and strip away the political rights of each member of its executive committee, much as the courts did with Thai Rak Thai in 2007 and the People Power Party in 2008.
The political nature of this action is easily inferred on the basis of the Court’s flimsy rationale, and its willingness to trample on the Constitution to block the amendment process. The amendment under consideration by parliament centers exclusively on Article 291 of the Constitution, which the governing coalition seeks to modify in such a way as to permit the election of a Constitution Drafting Assembly. The allegation that this constitutes an attempt “to overthrow the democratic regime of government with the King as Head of State,” leveled by the Democrat Party and its allies in the Senate, is based on the notion that the
Given the frequency with which the Constitutional Court has infringed upon the Thai people’s right to elect their own governments, and the scandalous nature of its two most recent rulings, this report makes the case for the removal of each of the Court’s justices, under the impeachment powers that the Constitution reserves for Thailand’s Senate. Aside from the immediate necessity of preventing another “judicial coup,” the restoration of the rule of law simply cannot take place so long as the country’s highest court is composed of judges who make so little pretense of independence and impartiality, and act with such blatant disregard for the Constitution they are sworn to uphold.
2. OF COUPS MILITARY AND JUDICIAL
The Thai people’s freedom to elect governments of their choosing, and to associate in legally constituted political parties, has been under attack since the military coup of September 19, 2006. While the removal of twice-elected Prime Minister Thaksin Shinawatra marked the beginning of an attempt to restore the hegemony of Thailand’s “establishment”—old moneyed elites, military generals, and high-ranking civil servants—the four party dissolution cases adjudicated by the courts in 2007 and 2008 were crucial to the subsequent effort to cripple electoral organizations that threatened the establishment’s rule. Thanks to the subservience of the courts, the rules on party dissolution have become a powerful instrument to remove elected governments, intimidate small parties into supporting the desired coalitions, and make corrections to the composition of the House of Representatives without resorting to a military coup.
At the time of the coup d’état carried out by Thailand’s armed forces on September 19, 2006, the dissolution of political parties was governed by provisions contained in the 1997 Constitution and the 1998 Organic Act on Political Parties. Consistent with most democratic countries, Section 66 of the Organic Act described the authority of the Constitutional Court to order the dissolution of political parties found to have acted to overthrow “the democratic system of government with the King as Head of State,” to have attempted to assume power through unconstitutional means, to have endangered the security of the state, or to have committed other irregularities such as accepting funds from abroad.
Should the Constitutional Court or any other organ acting on behalf of the Constitutional Court give the order to dissolve any political party for committing an act prohibited by the Organic Law on Political Parties B.E. 2541 (1998), the electoral rights of the Executive Board of such political party shall be revoked for a five-year period as from the issuance of such order.
The decree gave the junta the power not only to disband Thai Rak Thai—the party of deposed Prime Minister Thaksin Shinawatra—but also effectively remove its leaders from Thailand’s political scene before formally returning the country to civilian rule. At the time of the coup, Thai Rak Thai controlled 375 out of 500 seats in the House of Representatives, a consequence of its landslide victory in the 2005 elections. The disruption of its organization and the seizure of its assets would not have been enough to seriously compromise the chances of its return to political power, hence the need to neutralize its most capable politicians. The generals disbanded the Constitutional Court and replaced it with a handpicked Constitutional Tribunal, empowered by the Interim Charter with the same prerogatives of the old Court. This ensured that the new rules introduced by the generals would be applied and enforced in a manner consistent with the junta’s intent.
On May 30, 2007, while the country was still under military rule, the Constitutional Tribunal dissolved Thai Rak Thai for alleged violations of the 1998 Organic Act on Political Parties—namely, for conspiring to assume power through unconstitutional means and for committing “actions contravening the law.” The charges for which Thai Rak Thai was dissolved stemmed from the conduct of its officials during the (later annulled) April 2006 elections, which had been boycotted by the opposition. 6In an attempt to boost the credibility of the results, Thai Rak Thai was accused of having bribed two small parties into participating in the elections, as well as to have conspired with members of the Election Commission fraudulently to amend details in the registration of at least one such party to permit its participation. The scheme was alleged to have been arranged and carried out by two members of Thai Rak Thai’s executive committee, General Thammarak Issarangkura na Ayudhya and Pongsak Raktapongpaisar, but the Court reasoned that, given their position within
In ordering Thai Rak Thai’s dissolution, the Constitutional Tribunal also disqualified 111 of its executives from voting and from seeking elected office for a period of five years. Controversially, the Tribunal based this decision on the “Announcement of the Council for Democratic Reform No. 27” issued after the coup, even though the alleged offenses took place six months prior to the imposition of the new rules. As a result of the retroactive application of a decree imposed by a military junta, 111 members of Thai Rak Thai were deprived of their political rights owing to an episode of misconduct in which only two of them were alleged to have participated. The Tribunal made no attempt to establish whether any of the 109 executives not personally involved in the alleged offenses had any knowledge of the illegal actions. Most Thai Rak Thai leaders were denied an opportunity to speak for themselves in court.8
The elections held on December 23, 2007 marked Thailand’s return to formal civilian rule. By then, the generals had done much to prevent allies of former Prime Minister Thaksin Shinawatra from coming back to power. Aside from the dissolution of Thai Rak Thai and the redesign of the country’s constitution, the junta committed considerable state resources to defeat the People Power Party (PPP), founded in August 2007 by former members of Thai Rak Thai. Shortly after the PPP was established, the junta issued an order to suppress its activities, which led the PPP to file a complaint against the junta before the Election Commission. The Election Commission, however, dismissed the complaint on the grounds that the Council for National Security had granted itself immunity when it replaced the 1997 Constitution with a new one.9
While the military’s campaign was successful insofar as it kept the People Power Party from earning an absolute majority in the House of Representatives, its actions could not keep the party from winning a plurality of seats (233 out of 480 seats, against 165 seats for the second-placed Democrats). As a result, and despite the fact that the Election Commission disqualified some of its candidates for alleged irregularities, the People Power Party was able to form a coalition government under the leadership of the late Samak Sundaravej. The government was supported by a number of smaller parties in the House of Representatives.
Anticipating the possibility that the Democrat Party might not win the 2007 elections, despite the assistance provided by the military and much of Thailand’s public administration, the junta had made sure that the new Constitution would not only incorporate the provisions on party dissolution promulgated after the coup, but would further expand upon the anti-democratic powers reserved for the courts.
The effort to overturn the results of the 2007 election based on these unprecedented, sweeping provisions was already in full swing when the People Power Party’s new government was sworn in. Days after the election, reports surfaced that the Election Commission had opened investigations into as many as eighty-three races won by candidates under the People Power Party’s banner, while Democrat Party politicians lodged a formal petition to get the People Power Party disbanded on the grounds that the party was a proxy for the banned Thai Rak Thai. 7 At the same time, Deputy Leader Yongyuth Tiyapairat was implicated in an attempt to bribe local officials to campaign in support of his younger sister in a constituency in Northern Thailand. Given Yongyuth’s status within the party, it became immediately clear that his case would serve as the grounds upon which the People Power Party would later be dissolved.11 After pledging their support for the new government, similar proceedings were initiated against Chart Thai and Matchima Thippathai, based on the Election Commission’s annulment of the election victories of an executive for each party (Monthien Songprachai and Sunthorn Wilawan, respectively).12
On September 9, 2008, in response to charges brought forth by opposing politicians and the Election Commission, the Constitutional Court appointed by the Senate in May 2008 (whose members remain in office to this day) issued its first major ruling. The Court forced Prime Minister Samak to resign, owing to the fact that Samak had hosted a cooking class on television, allegedly in violation of the prohibition against elected officials receiving compensation from other sources. Samak argued that he was not employed by the television station and that, although the programs had aired during his tenure as Prime Minister, they had been recorded before he became premier. Those arguments did not prevail before the Constitutional Court, which
30061635.html 12 “Is End in Sight for Stricken Chart Thai?,” The Nation, January 12, 2008. http://www.nationmultimedia.com/home/Is-end-in-sight-for-stricken-Chart-Thai--
30062022.html voted unanimously to remove him from office. On September 18, 2008, Samak was replaced by PPP leader Somchai Wongsawat.
Legal proceedings against the three governing parties continued for the better part of 2008. Eventually, the Election Commission referred the cases to the Constitutional Court, recommending dissolution. As expected, on December 2, 2008, as the PAD’s occupation of the Bangkok’s international airports entered its second week, the Constitutional Court ordered that the three parties be disbanded. In addition, while the offenses in question were committed by only three men, the Court stripped all 104 members of the parties’ executive committees of their political rights, forty-one among them then sitting members of parliament.
The dissolution of the People Power Party, Chart Thai, and Matchima Thippathai may have been enough to force Somchai to resign, and bring down the government, but the number of MPs stripped of their office was still not large enough to give the Democrat Party a majority. The government of Abhisit Vejjajiva was only formed after intense lobbying on the part of the military and the Privy Council, which convinced a large faction of the dissolved PPP (reconstituted in the Bhum Jai Thai Party), the minor party Pheu Paendin, and MPs left over from Chart Thai’s dissolution to switch their support. Given the fate that had befallen parties that had previously defied the establishment, it is no surprise that the promise of immunity, among many other inducements, successfully enticed a sizable group of politicians to switch their allegiances.
Whereas Thailand’s provisions on party dissolution represent an unacceptable restriction on fundamental democratic freedoms, their selective, discriminatory enforcement has effectively turned legislation designed to fight corruption and election fraud into an instrument by which Thailand’s politicized judiciary could alter the composition of parliament, overturn the choices made by voters, and take opponents of the establishment out of contention.
The rules on party dissolution have consistently been applied in a biased and one- sided fashion. Concurrently with the dissolution of Thai Rak Thai in May 2007, the Constitutional Tribunal was also called upon to rule on similar charges referred by the Office of the Attorney General against the Democrat Party. Once again, the charges stemmed from the party’s activities during the brief campaign for the 2006 elections. In its filing recommending the dissolution of the Democrat Party, the Attorney General alleged that high-ranking Democrats officials Sathit Wongnongtoey and Secretary-General Suthep Thaugsuban were involved in attempts to bribe small parties into sitting out the elections. Members of the Democrat Party were also alleged to have bribed officials belonging to another small party into registering for the election, and subsequently hold a press conference in which they falsely accused Thai Rak Thai of having paid them to do so. While the junta-appointed Constitutional Tribunal upheld the latter charge, it conveniently cleared top party officials of the attempted fraud, saving the Democrat Party from dissolution.13 The 13 “The Tribunal Clears Democrat and Taikorn from Hiring Small Party and Wrongly Accusing TRT,” The Nation, May 30, 2007. Tribunal ruled that the Democrat Party should not be held responsible, in the absence of evidence pointing to the leadership’s participation or knowledge of the illegal acts. None of its executives faced any legal or administrative penalty as a result.
Since that judgment, the Democrat Party has been saved from dissolution on several other occasions. Weeks before Abhisit Vejjajiva became Prime Minister, the Election Commission ruled on a case of vote buying that implicated four Democrat Party candidates, including three sitting MPs. Crucially, the only official whom the Election Commission cleared of wrongdoing was Vithoon Nambutr, the only one among them who also served as a member of the party’s executive committee.14
The most telling example of the preferential treatment the Democrat Party has received, however, is provided by still more recent events. In April 2010, as the Red Shirt protests were in progress in Bangkok, the Election Commission referred two dissolution cases against the Democrat Party—one involving illegal donations amounting to 258 million baht, the other centering on the misuse of funds amounting to another 29 million baht. After spending six months questioning witnesses, examining evidence, and hearing closing arguments from both sides, the Court ruled that the cases had been inadmissible all along, based on the timing of their referral by the Election Commission.15 In a series of videos posted on YouTube in mid-October 2010, in advance of the verdict, Democrat Party officials were seen lobbying Constitutional Court judges to render a favorable decision on the party’s dissolution cases. In these videos, the judges openly discussed the political implications of clearing the Democrat Party—in particular, the potential that absolving the Democrats might buttress the Red Shirts’ claims about “double standards.” The justices also described how they managed to rig a judicial entry exam to favor their own relatives and cronies. While criminal proceedings were initiated against the persons believed to have recorded and posted the videos,16 the Constitutional Court justices have not faced any legal or disciplinary sanction for their conduct.
The minor parties persuaded to switch their support to Abhisit Vejjajiva in late 2008 were extended the same protection from party dissolution that the Democrats enjoyed. At least two of those parties benefited from their newfound immunity almost immediately thereafter. In May 2009, the Election Commission declined to bring party dissolution charges against Bhum Jai Thai, after Boonjong Wongtrairat (Cabinet member in Abhisit Vejjajiva’s government) was caught distributing public
http://www.nationmultimedia.com/home/The-Tribunal-clears-Democrat-and- Taikorn-from-hiri-30035587.html 14 “EC: No Basis to Red-Card Deputy Leader Vithoon,” Bangkok Post, October 29, 2008. http://www.bangkokpost.com/news/local/3553/democrats-safe-from-dissolution 15 “EC Hits Back at Critics of Its Actions,” Bangkok Post, Dec. 2, 2010. http://m.bangkokpost.com/topstories/209253 16 “Court Scandals in Thailand: Judges in the Dock,” The Economist, November 11, 2010. http://www.economist.com/node/17472738 money, blankets, and name cards to villagers in his home constituency. 8 Two months thereafter, the Election Commission spared Pheu Paendin from dissolution. While one of its executives had been disqualified from his position as MP based on an episode of vote buying during the 2007 election, the Election Commission ruled that the party could not be held liable for his actions. Though Noppadol Polsue had been appointed to Pheu Paendin’s Executive Committee in July 2007, the party registrar had failed to endorse the appointment until three days before the election. Therefore, the politician was not officially a member of the executive committee at the time of the offenses in October 2007.18
3. THE ESTABLISHMENT V. JATUPORN PROMPAN
Jatuporn Prompan was born on October 5, 1965 in the southern province of Surat Thani. As a student leader at Ramkhamhaeng University, he participated in the pro- democracy demonstrations that forced General Suchinda Kraprayoon to resign after massacring up to a hundred unarmed protesters in May 1992. Having joined Thai Rak Thai in the late 1990s, Jatuporn was elected to the House of Representatives in 2007, on the list of the People Power Party. After the dissolution of the People Power Party in late 2008, Jatuporn remained in parliament, joining the newly established Pheu Thai. At the same time, Jatuporn became one of the core leaders of the “Red Shirts” of the United Front for Democracy against Dictatorship (UDD), which held demonstrations throughout the country protesting the ouster of the democratically elected government and demanding the resignations of then Prime Minister Abhisit Vejjajiva, who had come into office following the party dissolution cases.
As a core leader of the UDD, Jatuporn organized the demonstrations that took place in Bangkok in April 2009. Following a bloody army crackdown, which forced the UDD to call off the protests, Jatuporn was arrested together with other fellow Red Shirt leaders for participating in an illegal gathering. The gathering was declared illegal by the government’s imposition of the Emergency Decree. A year later, Jatuporn once again led Red Shirt demonstrations in central Bangkok between March 12 and May 19, 2010, giving impassioned speeches against the government of Abhisit Vejjajiva. After a first violent crackdown on April 10, 2010 caused the death of twenty Red Shirt protesters, two foreign journalists, and five military officers, Jatuporn and his fellow UDD leaders took a principled stance, refusing to end the rallies, as proposed by the government, in the absence of guarantees that the events of April 10 would be properly investigated and prosecuted.19 The protests eventually
In the weeks following the demonstrations, Jatuporn and other UDD leaders were officially charged with participating in an illegal gathering, in contravention of the government’s declared state of emergency. Later, Jatuporn was among the leaders indicted on terrorism charges, stemming from the arson of some three dozen buildings that took place on May 19, 2010, after UDD leaders were already in police custody. Unlike most of the other core leaders of the UDD, who spent up to nine months in custody before being granted bail, Jatuporn’s status as a member of parliament allowed for his quick release. Though subject to conditions that limited his movements and activities, Jatuporn led frequent, peaceful demonstrations calling for justice, accountability, and the freeing of hundreds of political prisoners still in custody for violating the Emergency Decree and other alleged offenses.
On April 10, 2011, Jatuporn took to the stage during a commemoration organized at the Democracy Monument on the occasion of the first anniversary of the government crackdown. In a fiery forty-five minute speech, Jatuporn lambasted the Abhisit Vejjajiva administration and the Royal Thai Army for using the pretext of “protecting the monarchy” as an excuse to criminalize the Red Shirt movement and murder its members the year before, despite the fact that the Red Shirts’s sole demand was the dissolution of the House of Representatives.20 Jatuporn further criticized the Constitutional Court for sparing the Democrat Party from dissolution, making reference to the leaked video recordings that captured some of the justices colluding with party officials. Days later, representatives of the Royal Thai Army filed a complaint for lese majeste against Jatuporn on behalf of Commander-in- Chief Prayuth Chan-ocha, who alleged that Jatuporn had violated the monarchy in his speech.21 While the charges were later found to be baseless following a year-long investigation,22 the Department of Special Investigations (DSI) asked the Criminal Court to revoke Jatuporn’s bail. The Court accepted the request on May 12, 2011, only three days after Jatuporn’s parliamentary immunity had lapsed as a result of the dissolution of the House of Representatives. Jatuporn was held in Bangkok Remand Prison until August 2, 2011.
A week after his bail was revoked, Jatuporn’s name was included in the party list that Pheu Thai submitted for the election of July 3, 2011; Jatuporn appeared as the eighth-ranked candidate on the party’s national list. The Election Commission
Chongvilaivan, Bangkok, May 2010: Perspectives on a Divided Thailand. Singapore: ISEAS. 20 The speech can be viewed at: http://www.youtube.com/watch?v=zWDWU2dlhpc 21 “Complaint against Jatuporn, Two Others,” Bangkok Post, April 12, 2011. http://www.bangkokpost.com/news/local/231666/complaint-filed-against-jatuporn2-others 22 “Lese Majeste Charges against Jatuporn Lifted,” The Nation, May 11, 2012. http://www.nationmultimedia.com/politics/Lese-majeste-charges-against-Jatupornlifted-30181708.html endorsed the list after verifying that the candidates met the required legal qualifications. In advance of the election, Jatuporn’s lawyers repeatedly filed motions requesting that the Criminal Court grant bail or temporary release to allow him to vote. The requests were denied, and Jatuporn was thereby prevented from exercising his right to vote.
Jatuporn’s failure to cast a vote was immediately seized upon by the Democrat Party as evidence that he lacked the qualifications to serve in parliament. At first, the Election Commission certified the election results, allowing Jatuporn to be sworn in as a member of the new House of Representatives, which first met on the day of his release. In late November 2011, however, the Election Commission of Thailand ruled by a 4-1 vote that Jatuporn should be disqualified from his position as member of parliament, asking the Speaker of the House of Representatives to refer the case to the Constitutional Court for a final ruling. On May 18, 2012, the Court finally ruled that Jatuporn’s detention on election day, and consequent non-participation in the election, disqualified him from serving as a member of parliament under provisions of the 2007 Constitution and the 2007 Organic Act on Political Parties.
The reasoning of the Court was as follows:
Whereas the Constitutional Court was able to invoke a legal technicality upon which to justify the termination of Jatuporn’s status as member of parliament, every stage in the two-year process that led to this outcome, from the initial arrest on May 19, 2010 to the Constitutional Court’s ruling on May 18, 2012, was marred by violations of Jatuporn’s civil and political rights guaranteed in the International Covenant on Civil and Political Rights (ICCPR), customary international law, and Thailand’s own constitution.
First, international organizations have widely questioned the appropriateness of the criminal charges that Jatuporn still faces in connection with his involvement in the 2010 Red Shirt rallies. The charge of participation in an illegal gathering, specifically, stemmed from the previous government’s unlawful abuse of emergency powers. Article 4 of the ICCPR permits the suspension of certain rights, such as the right to demonstrate, only in instances where a public emergency “threatens the life of the nation” and only “to the extent strictly required by the exigencies of the situation”—in any event, under no circumstances can a State of Emergency be used to “undermine the rule of law or democratic institutions.” According to the International Commission of Jurists, 9 Human Rights Watch,24 the International Crisis Group,25 Amnesty International,26 and the Asian Legal Resource Center,27 among
Similar doubts have been raised over the political nature of the terrorism charges on which Jatuporn and other fellow Red Shirt leaders were indicted in August 2010. While the Red Shirts were accused by the government of committing various acts of violence, there exists no evidence pointing to the Red Shirt leaders’ role in planning the attacks, or even knowledge of the attacks. Moreover, authoritative observers have publicly cast doubt on whether even the worst offenses could be reasonably described as “terrorism.” In the aftermath of the protests, the International Crisis Group urged Thailand to drop terrorism charges against the UDD leaders, on the grounds that the UDD never targeted civilians, and were labeled “terrorists” based on an exceedingly broad definition. 10 Similarly, United Nations Special Rapporteur on Human Rights and Counter-Terrorism, Martin Scheinin, expressed serious reservations about whether any of these offenses might qualify as “terrorism,” owing to the fact that the Red Shirts have never been accused of “serious violence against members of the general population or segments of it.”29 In truth, the terrorism charges were simply a way to justify the government’s violent crackdown, whose rules of engagement specifically authorized security forces to kill “terrorists” without specifying what actually made someone a “terrorist.”
The revocation of Jatuporn’s bail on May 12, 2011 constituted a punitive act, conveniently timed by the Criminal Court to coincide with the lapse of his status as member of parliament after the dissolution of the House of Representatives. By then, Jatuporn had been out on bail for almost a year; in that time, he was never alleged to have tried to flee the country, or to have committed offenses similar to those on which he is awaiting trial. Fittingly, what triggered Jatuporn’s re-arrest was Thailand’s Army Chief’s displeasure with his criticism of the Royal Thai Army’s conduct during the massacre of Red Shirt protesters the year before. While the complaint filed on behalf of General Prayuth Chan-ocha alleged that Jatuporn had committed lese majeste in his speech on April 10, 2011, the speech contains neither criticism of the monarchy nor any threat of violence and unrest. Jatuporn was punished by the Criminal Court for exercising his rights to free expression, as guaranteed by Thai law, on the vague notion that his words were meant to “incite the crowd.”30
While the Thai Constitution specifically provides for the disenfranchisement of persons “detained by a lawful order” on election day, whether or not such persons were convicted of a crime, preventing those accused of a crime from exercising the
Aside from violating Jatuporn’s fundamental right to free association and to the presumption of innocence, the Constitutional Court’s decision to disqualify him from parliament was based on a tendentious interpretation of the relevant statutes. As Jatuporn’s lawyers pointed out, the provisions of the Organic Act on Political Parties upon which the Constitutional Court ruled that Jatuporn’s membership in Pheu Thai was automatically terminated on election day are in conflict with provisions of the Constitution that list the qualifications individuals must possess to present their candidacy for election and serve in parliament.
Article 102(3) of the Constitution only bars those convicted of a crime, not those accused of a crime, from submitting their candidacy; similarly, Article 102(4) states that only those convicted of a crime, not those accused of a crime, lose their right to stand for election once a candidacy is submitted. Moreover, Article 106 of the Constitution, citing Article 102, only prohibits those convicted of a crime, not those accused of a crime, from serving in the House of Representatives. As a result, lawyers argued that Jatuporn’s disqualification, technically grounded in provisions in the Organic Act on Political Parties that regulate party membership, are in conflict with the relevant provisions in the Constitution, which do not contemplate that those accused (but not convicted) of a crime should be deprived of their right to stand for election or serve in the House of Representatives. Jatuporn’s lawyers requested that the Court resolve the conflict by giving precedence to the Constitution, the highest law of the land. Few, however, were surprised by the Constitutional Court’s eventual ruling, which disqualified Jatuporn not by invoking the relevant provisions in the Constitution, but rather through the back door of the rules on party membership.
The ruling against Jatuporn sets a dangerous precedent for a country with Thailand’s recent track record. Based on this ruling, from now on any candidate for political office—an aspiring legislator, a contender for the position of Prime Minister, or even the entire list of candidates fielded by a political party—can be disqualified from serving in office if detained “by lawful order” on election day. Not only is no conviction required; the candidate can be disqualified on that basis even if the arrest results in no formal criminal charges. In a country where the judiciary suffers from insufficient independence, and where the courts have served as the primary instrument by which unelected elites have altered the results of elections, these sweeping powers reserved for the judicial branch pose a grave threat to democracy and the future conduct of Thai elections.
Aside from the injustice inflicted on Jatuporn, and the green light that this decision gives to the courts to prevent any future candidate from taking office on the basis of a convenient and well-timed arrest, the case has immediate implications for Thailand’s political stability and democratic governance. Immediately after the Constitutional Court ruled that Jatuporn be disqualified from the House of Representatives, officials in the opposition Democrat Party announced plans to request that Pheu Thai be dissolved on the basis of the Court’s finding. The Democrat Party is expected to argue that Pheu Thai, which won the 2011 elections in a landslide, “inappropriately endorsed” Jatuporn’s candidacy, and that, in turn, Jatuporn’s inclusion in the party’s slate of candidates caused the election to be conducted in a “dishonest and unfair manner.” In the event that the Election Commission of Thailand agrees with this reasoning, it can file a motion requesting that the Constitutional Court dissolve Pheu Thai under Article 237 of the 2007 Constitution.
This argument is without serious legal merit, for a variety of reasons.
First, Jatuporn did not lack the qualifications to be a candidate at the time the party lists were submitted, as required by Article 102 of the Constitution. To reason otherwise is to conclude that anyone detained by an order of the court automatically forfeits his or her membership in a political party, even if that does not entail the failure to vote in an election. The Organic Act on Political Parties, however, provides for the termination of party membership only in cases where a person is deprived of the right to vote, or the exercise thereof.
Second, Jatuporn’s candidacy was endorsed by the Election Commission of Thailand, which, according to Article 43 of the “Organic Act on the Election of Members of House of Representatives and the Senate,” must examine the qualifications of each of the candidacies submitted before it approves and publishes the candidate slates. Moreover, Article 25 of the same Act empowers the Election Commission to intervene, prior to the election, in cases where candidates for office are suspected of having lost the right to stand for election, and to ask the Supreme Court to render a ruling on the matter. In spite of the publicity received by Jatuporn’s detention, the Election Commission never made any such request to the Supreme Court before the election, and even certified the election’s result, paving the way for Jatuporn to be sworn in as a member of parliament.
The behavior of the Election Commission, and the constitutional provisions protecting the right of those detained while awaiting trial to stand as candidates for office (Article 102) and serve as members of parliament (Article 106), undermine any argument that Pheu Thai officials submitted an improper list of candidates. Even more implausible is the notion that Jatuporn’s candidacy would have caused the election to proceed in a “dishonest and unfair manner.” Had Jatuporn been excluded from Pheu Thai’s national list in advance of the election, whether as a result of the party’s own decision, the Election Commission’s failure to endorse his candidacy, or intervention by the Supreme Court, there exists no evidence to suggest with any degree of confidence that Pheu Thai would have garnered more or less votes in the election.
Still the frivolousness of the Democrat Party’s case, and the strength of the argument against dissolution, is little comfort, considering that Thailand’s politicized Constitutional Court has the power to disband a political party by simply asserting, under the exceedingly broad, vague, and selectively enforced provisions on party dissolution, that at least one of the party’s executives caused the election to proceed in a “dishonest and unfair manner.” Given that something quite similar has happened more than once in the past six years, the prospect that the courts would intervene to dissolve Pheu Thai, thereby overturning the results of another election, was always understood to be very real, irrespective of the legal merits of the case, or the infringement of the Thai people’s right to self-determination that such a decision would comport.
4. JUDICIAL COUP, THE SEQUEL
The Pheu Thai Party based it 2011 election campaign platform on an agenda of reforms, above all reforms to the Constitution. Individual members of Pheu Thai have long advocated that Thailand should replace its 2007 Constitution, written under military rule, with its 1997 Constitution. Abolished by the generals who seized power in the 2006 military coup, the 1997 Constitution is widely recognized as the most democratic among the eighteen constitutions Thailand has lived under since 1932. Rather than attempting to reintroduce the old document, however, the government of Yingluck Shinawatra has proposed that the Constitution be re- written by a Constitution Drafting Assembly, as has happened several times in the past few decades. Contrary to prior instances, the coalition’s position is that the Constitution Drafting Assembly should be for the most part elected by the people, one for each of Thailand’s seventy-seven provinces, and should limit the number of appointed experts, who had dominated previous panels, to twenty-two. The draft produced by the Constitution Drafting Assembly would then be put to the people for approval in a referendum.
Instead of attempting to amend the Constitution in parliament, as it is empowered to do under Article 291 of the present charter, the government has sought to amend Article 291, broadening it to allow for the establishment of a Constitution Drafting Assembly of the kind described above. By May 2012, the proposed amendment had already been debated and approved by an overwhelming majority (340-101) of members of the House of Representatives and Senate in two of the three readings required by the Constitution. The National Assembly was scheduled to begin its third and final reading of the constitutional amendment on June 5, 2012.
Upon the passage of the second reading in May 2012, members of the opposition Democrat Party and some appointed Senators submitted complaints to the Constitutional Court, alleging that Pheu Thai and other parties in the government’s coalition, in pushing the constitutional amendment, had violated Article 68 of the Constitution. Article 68 provides:
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 or to acquire power to rule the country by any means not in accordance with the modes provided in this Constitution. Faced with the challenge of explaining how a procedural amendment to Article 291 of the Constitution constitutes an attempt “to overthrow the democratic regime of government with the King as Head of State,” the plaintiffs argued that the apparently innocuous amendment would enable Pheu Thai and its allies to pursue their “hidden agenda” to overthrow the current regime of government. This is in keeping with an old conspiracy theory peddled by the PAD, the Democrat Party, and the Royal Thai Army, who have long accused former Prime Minister Thaksin Shinawatra and his supporters of scheming to overthrow the monarchy. The accusation, though never substantiated in any way, was the basis upon which the 2006 military coup and the 2010 massacre of Red Shirt demonstrators were explained to the public. Most recently, the Department of Special Investigations (DSI) concluded that a famous alleged conspiracy to overthrow the monarchy, which the administration of Abhisit Vejjajiva and the Royal Thai Army announced they had uncovered in 2010, was based on no evidence. 11 In other words, the concocted conspiracy was an excuse to criminalize the Red Shirt movement.
The complaints filed with the Constitutional Court in May 2012 are based on this discredited underlying claim. Specifically, the plaintiffs argued that the amendment to Article 291 of the Constitution would pave the way for the election of a Constitution Drafting Assembly dominated by supporters of the current government. In turn, the plaintiffs alleged, these unnamed and yet-to-be-selected members of the Constitution Drafting Assembly would write into the new Constitution provisions that would seek “to overthrow the democratic regime of government with the King as Head of State,” in spite of the government’s stated position that constitutional provisions related to the monarchy should not be amended.32 In essence, the Constitutional Court is being asked to scrutinize what is in the minds of legislators who voted in favor of amending Article 291 of the Constitution, and to conduct the sort of “trial of intentions” permitted by no democratic country with minimal respect for the rule of law. The Court’s position is rendered all the more puzzling by the fact that the proposed amendment to Article 291 would have the government cede the initiative and direction of the constitutional project to the people, giving the people an unprecedented opportunity to chart their own democratic future.
It is telling that the Constitutional Court’s recent ruling would legitimize the suspicion that increasing the role of the people in the constitutional reform process, accomplished through the procedure spelled out in the existing Constitution, threatens “to overthrow the democratic regime of government with the King as Head of State.” The Court has in fact never expressed similar unease about the actions of the military junta that resorted to using force in 2006 to topple democracy and abolish a lawful Constitution. Indeed, one of the petitions asking the Constitutional Court to stop the amendment process under Article 68 specifically
The complaints lodged with the Constitutional Court are especially insidious because, under the provisions of Article 68 of the Constitution, the Court is empowered to order the dissolution of any political party found to have attempted “to overthrow the democratic regime of government with the King as Head of State.” As a result, these provisions offer the quickest and most direct way in which the Constitutional Court may dissolve Pheu Thai and its allies, considering that the dissolution case related to Jatuporn Prompan’s disqualification from parliament still needs to be heard by the Election Commission before it actually reaches the Constitutional Court. Presented with the opportunity to act by the chaos fomented inside and outside parliament by the Democrat Party and the PAD, and perhaps more importantly the need to block any amendment to a constitution written at the behest of a military junta, the Constitutional Court appears to have taken the express route to another “judicial coup.”
Amazingly, not only did the Constitutional Court agree to review, as requested by the plaintiffs, the presumed “hidden intentions” of political parties that proposed the amendment to Article 291 of the Constitution; in doing so, the Court chose to overstep the bounds of its constitutional authority. Article 291 of the Constitution, in its present form, does not contemplate any role for the Constitutional Court in the process of amending the Constitution, a prerogative reserved for the legislative branch, acting on a proposal submitted by either the executive or a group of parliamentarians. Nor does any provision in the Constitution empower the Constitutional Court to order the parliament to suspend its deliberations on constitutional amendments. In issuing its injunction on June 1, 2012, therefore, the Constitutional Court, based on the weakest of rationales, committed an egregious violation of the separation of powers, a founding principle of any representative democracy.
Moreover, the Constitutional Court’s injunction actually breaches the provisions of Article 68 of the Constitution upon which it has decided to act. Article 68 requires that individuals or groups suspected of having committed an act aiming “to overthrow the democratic regime of government with the King as Head of State” be investigated by the office of the Attorney General; at the conclusion of the investigation, it is up to the Attorney General to “submit a motion to the Constitutional Court for ordering the cessation of such an act.” In approving the motion, the Constitutional Court subsequently has the option of ordering the dissolution of any political party found to have engaged in the act. In this instance, the Court received no such motion from the Attorney General. Contrary to both the letter and the spirit of the Constitution, the Court simply took matter into its own hands, ordering parliament to cease exercising its constitutional powers, and asking those so implausibly accused of such a grave offense to provide the Court with a defense of their motives before any investigation is even conducted. In announcing the decision, a spokesman for the Constitutional Court conceded that the National Assembly would face no penalty should it fail to heed the injunction, as no law gives the Court the power to issue such an injunction; he warned, however, that ignoring the unlawful order “may reflect an intent as claimed in the petitions.” 13
As Thai legal scholars, including a former Senator and Dean of Thammasat University’s Department of Law, have pointed out in the wake of the Constitutional Court’s announcement, the Court’s decision to ignore the Constitution’s own provisions, and to arrogate powers well in excess of its constitutional authority, threatens the functioning of democracy by undermining the separation of powers and the authority of branches of government subject to election by the people. As a result, the decision by the Court represents “an intentional exercise of power contrary to the provision of the Constitution or law,” which Article 270 of the Constitution mentions as grounds upon which government officials, including Constitutional Court justices, may be removed from their posts by a supermajority of the Senate, in accordance with the provisions of Article 274.34
5. THE CASE FOR IMPEACHMENT
In its preamble, the Universal Declaration of Human Rights affirms:
It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.
The political crisis Thailand has suffered through since 2006 exemplifies the relationship between the rule of law and political instability, violence, and upheaval, as highlighted by the Universal Declaration in 1948. On the one hand, the deterioration in the protections afforded by the rule of law—including the unlawful abolishment of a constitution, the overturning of elections, the perversion of the course justice to serve a political agenda, the impunity afforded (de jure or de facto) to state officials, and the punitive enforcement of legislation restricting the free exercise of rights guaranteed in both domestic and international statutes—has been the principal catalyst of conflict in Thailand. The Red Shirt demonstrations of 2009 and 2010 were not, as the previous government’s implied, motivated primarily by “social inequalities;” they were driven by demands for more democracy, protection of existing rights, and equality before the law. On the other hand, the conflict precipitated by the abolishment of the 1997 Constitution led to the further deterioration of the rule of law, which was damaged by the arbitrary imposition of
Actors on every side of Thailand’s political divide often speak of the importance of upholding the law. Different usages of the term, however, reflect fundamentally different conceptions of what the “rule of law” requires. On one side is a formal (or “thin”) conception of the rule of law, whose concern is for the making and the administration of the law, as opposed to its content or the legitimacy of the relationship between rulers and ruled evidenced in the law. This “thin” conception has allowed politicians, generals, judges, and law enforcement officials to justify actions by the state that result in the denial or violation of civil and political rights as consistent with the requirements of the rule of law, provided that the measures in question are grounded in (rights-violating) legislation that is clear, stable, coherent with the corpus of existing legal rules, and more or less consistently administered by the state. On the other side is a more substantive (or “thick”) conception of the rule of law, whose preoccupation is with a sense of legality that sets limits to what can be done in the name of law. Said restrictions are grounded in a different conception of the relationship between rulers and ruled, one in which the ruled should only be expected to abide by laws written, enforced, and adjudicated in compliance with principles of justice, equality, and respect for human rights.
Prospects of reconciliation and durable peace in Thailand rest on its capacity to move from a formal (or “thin”) conception of the rule of law—one where the law is used as a tool to shield powerful institutions from accountability, stifle free and open debate, abuse human rights, persecute dissidents, or cripple the electoral process—to a more substantive (or “thick”) conception. This requires first and foremost that rulers relate to the ruled only through law, and that every major actor or institution operate according to the law’s specifications, without special powers or prerogatives not contemplated by statute. Importantly, though, the realization of a more substantive approach to the rule of law also requires that the country’s legal system become the guarantor of human rights, and an independent judiciary committed to upholding the law.
As demonstrated in this report, one of the gravest failings of Thailand’s democracy is the discriminatory administration of justice. The judicial branch suffers from extreme politicization, reflected most prominently in the consistent application of double standards in the rulings of the Constitutional Court. The judiciary’s politicization, moreover, is made all the more harmful by some of the provisions of the 2007 Constitution, which perpetuate restrictions to democratic rule by enshrining into law the power of the judiciary to alter the results of freely conducted elections. In the long run, rectifying this situation requires structural reforms aiming to transform the courts from an instrument of politics into an instrument of justice, in a way that maximizes the courts’ impartiality and objectivity, guarantees Thai citizens equality before the law, and relieves the judiciary of its historical responsibility to legalize coups, cover up abuses or corruption, and defend the impunity of state officials who violate basic human
The unlawful order issued by the Constitutional Court on June 1, 2012, in clear contravention of procedures specified by the Constitution and the separation of powers sanctioned therein, in and of itself constitutes “an intentional exercise of power contrary to the provision of the Constitution or law” of the kind sufficient to justify the removal of justices currently serving on the Court. What makes the removal of the current justices imperative, however, is their proven track record of partisan meddling, their lack of independence, their disregard for the rights of the Thai people, their disrespect for democracy, and their willingness to break the law, whenever necessary to pre-empt, block, or overturn the implementation of policies endorsed by the voters at the ballot box.
Since their appointment in May 2008, the current justices of the Constitutional Court have been the principal instrument through which democracy has been undermined, and opponents of the Thai establishment have been intimidated and neutralized. As the cases described above show, the Constitutional Court has consistently rendered partisan verdicts, finding technicalities to exonerate one side and punish another. Having removed two Prime Ministers, dissolved three governing parties, and stripped a hundred party executives of their political rights in late 2008, the Court has consistently failed to apply the same standards to the Democrat Party and its allies. The video recordings showing some of the justices coordinating with Democrat Party officials, disparaging members of Pheu Thai, and admitting to having rigged judicial entry exams in 2010 demonstrate just how little regard these judges have for the law and basic standards of impartiality. The recent disqualification of Jatuporn Prompan from parliament, and the decision by the Constitutional Court to inflict such a severe legal punishment, in the absence of a criminal conviction, on the basis of statutes whose provisions stand in direct contrast with the Constitution, show just how little respect the Court has not only for basic individual rights, or the right of the Thai people to elect their representatives, but the Constitution itself.
As Thailand awaits a fair resolution to years of political conflict, and the kind of reforms that would make the country a genuine “democracy with the King as Head of State” founded on the rule of law, further miscarriages of justice can only be averted by the initiation of impeachment proceedings against each of the Constitutional Court justices, and eventually their replacement, at the end of the process specified in Articles 270-274 of the 2007 Constitution, with a new-line up of justices with a proven record of excellence, independence, and personal integrity. Furthering Thailand’s democracy requires, first and foremost, rescuing what little democracy it already has from the stranglehold exercised by forces that have never accepted Thai people’s right to govern the country. As the calls for the military or the judiciary to remove Thailand’s duly elected government intensify, the House of Representatives and the Senate should rise to the occasion, and act under the authority conferred upon them by Constitution to defend Thailand’s beleaguered democracy.
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