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Judicial Coup, Redux: The Case for Impeaching Thailand's Constitutional Court

Judicial Coup, Redux: The Case for Impeaching Thailand's Constitutional Court

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Published by Robert Amsterdam
This document outlines the manner in which the Constitutional Court of Thailand has been captured by a minority group of elites who have sought to apply its powers to override democratically elected representatives of the people.
This document outlines the manner in which the Constitutional Court of Thailand has been captured by a minority group of elites who have sought to apply its powers to override democratically elected representatives of the people.

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Published by: Robert Amsterdam on Jun 05, 2012
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11/22/2012

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JUDICIAL
 
COUP,
 
REDUX:
THE
 
CASE
 
FOR
 
IMPEACHING
 
THAILAND’S
 
CONSTITUTIONAL
 
COURT
A REPORT PRESENTED BY
 
AMSTERDAM & PARTNERS LLP
JUNE
 
5,
 
2012
1.
 
I
NTRODUCTION
 
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 tocease all deliberations on a proposed amendment to the 2007 Constitution, pendinga review of the amendment’s constitutionality. The injunction was issued on thesame day when a few hundred activists from the so-called People’s Alliance forDemocracy (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.” Theprevious two meetings of the House had been disrupted by the PAD’s threat tostorm the halls of the National Assembly, and by the intemperate outbursts of Democrat Party members of parliament, some of whom physically assaulted theHouse Speaker and other parliamentarians. Once again, the PAD, the DemocratParty, and the Constitutional Court have teamed up to delegitimize the democraticprocess, prevent the representatives of the Thai people from fulfilling theirlegislative functions under the Constitution, and lay the groundwork for theremoval of a duly elected and legally constituted government, whether by militaryforce (as in 2006) or by judicial intervention (as in 2008).The current government, led by Prime Minister Yingluck Shinawatra, came to officelast year on the strength of the landslide victory scored by the Pheu Thai Party inthe 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
1
“Constitution Court under Fire over Charter Bill Vote,” Bangkok Post, June 3, 2012.http://www.bangkokpost.com/news/local/296309/constitution-court-under-fire-over-charter-bill-vote 
 
 
-2-
 dissolved by the courts. Havingearned an absolute majority of the seats in theHouse of Representatives, Pheu Thai formed a coalition government that nowcontrols in excess of 300 out of a total of 500 House seats.From the beginning of the 2011 election campaign, speculation has been rife thatPheu Thai might suffer the same fate as its predecessors, in the event of victory atthe polls. As expected, judicial efforts to overturn the election began before the finaltallies were in, as the opposition Democrat Party filed a number of complaintsrequesting that the courts initiate proceedings leading to Pheu Thai’s dissolution.
2
 At first, these efforts seemed to yield little effect. The Democrat Party has been theprincipal 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 acontext where the PAD was wreaking havoc in the streets, that the Democrats wereable to form a government in 2008, despite not having won an election in twentyyears. Following the 2011 elections, however, the courts appeared reluctant tointervene, perhaps in recognition of the overwhelming mandate Pheu Thai hadreceived at the ballot box. At the same time, the decision to let the election resultsstand was understood by supporters of the government to signify little more than atemporary truce, as cases that could lead to Pheu Thai’s dissolution slowly madetheir way through the process. Given the risks that staging a military coup wouldcomport, and the Democrat Party’s track record of losing elections, theConstitutional Court remained the best option available to those seeking to removethe government elected by the Thai people in 2011. One of the complaints filed by the Democrat Party after the 2011 election soughtthe disqualification from the House of Representatives of Jatuporn Prompan, electedas a candidate on Pheu Thai’s national party list. Jatuporn, a long-time politicalactivist and incumbent legislator, was alleged to lack the qualifications to serve inthe House of Representatives, owing to his failure to vote in the 2011 elections. Onelection day, Jatuporn was held in Bangkok’s Remand Prison on charges of terrorismand participation in an illegal assembly, charges stemming from his leadership rolein the “Red Shirt” protests of March-May 2010. While he had previously been freedon bail, on account of his status as a member of parliament, bail was revoked assoon 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 occasionof the first anniversary of a military crackdown that had taken the lives of twentyRed Shirt protesters the year before. The specious charges were later dropped.Despite repeated requests, the Criminal Court denied Jatuporn temporary releasefrom custody in order to vote in the July 3, 2011 elections.
2
Michael J. Montesano, “Thailand’s Ungraceful Losers,” Wall Street Journal, July 13,2011.http://online.wsj.com/article/SB10001424052702303678704576441323472724988.html 
 
 
-3-
 Jatuporn’s election to the House of Representatives was initially certified by theElection Commission. Upon further review, however, months later the same bodyrecommended to the Constitutional Court that Jatuporn be disqualified. The Courtin turn approved the Election Commission’s recommendation, disqualifyingJatuporn from parliament in a 7-1 ruling issued on May 18, 2012.
3
The ruling was based on a legal technicality, and ignored the obvious conflict between the statutethe Court relied upon, the Organic Act on Political Parties, and several provisions of the 2007 Constitution. In a nutshell, while the Constitution stipulates that onlyprisoners convicted of a criminal offense, and not defendants awaiting trial, lack thequalification to serve in parliament, the Court found that Jatuporn’s detention onelection day terminated his membership in a political party, and thereby caused himto lose a required qualification to be elected to parliament.On the day theConstitutional Court disqualified Jatuporn from office, the opposition DemocratParty announced plans to file briefings seeking Pheu Thai’s dissolution under Article237 of the Constitution, on the grounds that Jatuporn should never have beenincluded in the party’s list of candidates for the 2011 elections.
4
 The case that could potentially lead to the dissolution of Pheu Thai in connectionwith Jatuporn’s disqualification is still months away from reaching theConstitutional Court. It is perhaps as a result that the Constitutional Court, facedwith the necessity of blocking the enactment of a central plank of Pheu Thai’scampaign platform, had to resort to issuing an injunction prohibiting the parliamentfrom continuing deliberation on amendments of the Constitution, even at the costof reaching far beyond its constitutional authority. Ominously, the ConstitutionalCourt announced its decision to review, under Article 68 of the Constitution,whether the proposed constitutional amendments constitute an attempt by PheuThai and its coalition partners “to overthrow the democratic regime of governmentwith the King as Head of State.” Any such finding would empower the ConstitutionalCourt 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 Thaiin 2007 and the People Power Party in 2008.The political nature of this action is easily inferred on the basis of the Court’s flimsyrationale, and its willingness to trample on the Constitution to block theamendment process. The amendment under consideration by parliament centersexclusively on Article 291 of the Constitution, which the governing coalition seeksto modify in such a way as to permit the election of a Constitution DraftingAssembly. The allegation that this constitutes an attempt “to overthrow thedemocratic regime of government with the King as Head of State,” leveled by theDemocrat Party and its allies in the Senate, is based on the notion that the
3
“Charter Court Disqualifies Jatuporn,” Bangkok Post, May 18, 2012.http://www.bangkokpost.com/lite/topstories/294016/charter-court-disqualifies- jatuporn 
4
“Democrat Seeks Dissolution of Pheu Thai Party,” Thai-Asean News Network, May21, 2012.http://www.tannetwork.tv/tan/ViewData.aspx?DataID=1054916 

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