Awzar Thi, Member, Asian Human Rights Commission, Hong Kong
Alexander Hamilton wrote in 1787 that where powers of government are properly separated the judiciary poses the least threat to constitutional rights:
Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Consitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. (The Federalist, no. 78)
The judiciary has no physical force of its own. Even for its judgments to be effected it relies upon police, corrections officers and bureaucrats. But although liberty has nothing to fear from the judiciary alone, Hamilton continued in the same passage, it has everything to fear from its union with other parts of government. A truly independent judiciary is a safeguard; a non- independent one is a grave threat:
Awzar Thi is the pen name of a member of the Asian Human Rights Commission who writes a weekly column on the rule of law and human rights in Thailand and Burma for UPI Asia Online. This article consists of some expanded versions of recent columns on constitutional issues and related concerns in Thailand. All of the original columns can be read on the UPI website, www.upiasiaonline.com, or on the author’s personal site, which includes links to sources and other relevant pages: www.ratchasima.net.
This simple view of the matter suggests several important consequences.It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with “success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves that though individual oppression may now and then proceed from the courts Thailand have never from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the executive. For I agree that “there is no liberty if the power of judging be not separated from the legislative and executive powers” [Fn: Montesquieu, The spirit of laws, vol. 1, p. 181]. And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone [it] would have everything to fear from its union with either of the other departments…
Some decades after Hamilton and his peers successfully advocated for their draft constitution, a French aristocrat observed that the great strength of America’s political system lay in its courts. Alexis de Tocqueville marveled at how judges’ authority was invoked at every turn, yet the constitution granted them no overt political powers:
What a foreigner understands only with the greatest difficulty in the United States is the judicial organization. There is so to speak no political event in which he does not hear the authority of the judge invoked; and he naturally concludes that in the United States the judge is one of the prime political powers. When, next, he comes to examine the constitution of the courts, he discovers at first only judicial prerogatives and habits in them. In his eyes the magistrate never seems to be introduced into public affairs except by chance, but this same chance recurs every day. (Democracy in America, vol. 1, ch. 6)
Constitutional rights were guarded through strict interpretation of law and adherence to judicial practice. In this way, he concluded, the courts formed the strongest barrier against the rise of tyranny.
The courts in Thailand, by contrast, have never been obstacles to tyrants. The notion of judicial review of government actions, which briefly captured public attention before the 2006 coup, has never caught hold in Thailand. Nor has its senior judiciary ever ruled against a military takeover. On the contrary, it has at each instance affirmed that might is right and has rewritten the law accordingly, even where, in the words of Professor Worachet Pakeerut of Thammasat University, this has been “against morality and people’s common sense.”
Therefore, the fact that the new draft constitution, written under the army’s watch, is being described as a “judges’ charter” suggests that people are getting confused. There is justified alarm at its contents, which include many new judicial powers relating to the appointment of senators (they won’t be elected anymore) and representatives of independent bodies, as well as expanded authority over electoral affairs and administration.
The chief drafter, a former air force squadron commander, Prasong Soonsiri, said that his committee had deliberately sought to enlarge the role of the courts to prevent the sort of been obstacles to of justice, the general liberty of the people can never be endangeredpolitical problems that had arisen in the last couple of years. But judges have worried that this will push them into an overtly political role and undermine their fragile and limited integrity. So have they held too little power, or are they going to get too much?
The cause for this confusion is in the failure to differentiate, as Hamilton did two centuries ago, between an independent judiciary and a compromised one. Thailand’s senior judges have proven themselves unwilling and incapable of resisting the authority of other parts of government. There is no reason to believe that under a new constitution with expanded powers they would be any different. And that’s what this constitution is really all about: not expanding the power of the judiciary, but expanding the power of others through it.
Perhaps the clearest indication of the deeply regressive ideology behind the draft constitution, and everything of which it is a part, can be found in its section 68: that in times of “national crisis” a council comprising the prime minister, the chairpersons of upper and lower houses, the leader of the opposition, and the chairpersons of the Constitution Court, Supreme Court, Administrative Court and independent organizations be established to sort things out—the whys and wherefores being left to the imagination. At least one drafter, Sodsri Sattayatham, who also happens to be a member of the election commission that will oversee the proposed referendum on the draft, kept insisting that the council should have included representatives of the army and police, so that they could help find a solution and not feel the urge to grab their guns and head on down to parliament quite so often.
The drafting group subsequently agreed, under withering criticism from all quarters, to tentatively withdraw section 68. Nonetheless, the provision remains important because it exposes the extremely primitive thinking that has gone into the whole charter: not that the judiciary is a check on the power of the parliament or military at all, but rather, that the best it can do— especially at times of greatest urgency—is just to help other parts of government out somehow. The separation of powers, which only exists in Thailand notionally anyway, does not exist at all in the minds of the people who have prepared the mock constitution.
A properly-formulated charter defining, expanding and protecting the power of courts in Thailand could only be a good thing. The draft constitution of 2007 is no such document. It was never intended to be, and nor shall it be. On the contrary, it is a hurried attempt at devising ways and means for the old order to persist in exercising its prerogatives through a judiciary whose responsibilities have for over a century been configured with reference to a national figurehead, rather than its citizenry. This is no judges’ charter; it is a generals’ charter dressed in judges’ clothing. Thailand’s judiciary is not on the rise; as usual, it is just on for the ride.
There is one obvious way out of his whole mess, one that was available from the start and which has obtained currency in recent days. Bring back the 1997 constitution. Bring it all back. Abandon the pretence that has been carried along since last September. Don’t waste any more time and money on a fraudulent constitution. After a new government is elected, appropriate persons can be appointed to study and propose constitutional amendments, and a sensible, open and coherent debate can be held on matters of national importance. None of this can or will happen right now, amid the retarded political and social conditions that are part and parcel of military dictatorship. If Thailand has to go forward to the past, then it had best be 1997; the draft charter and people behind it aim to drag the country back much further than that.
Dictators use referendums too
By September 2007 the draft constitution, Thailand’s eighteenth, will go to the country’s first-ever referendum. If passed by simple majority, the military government that took over last year will declare its mission accomplished and ostensibly transfer power back to civilian hands.
Amid more and more questions about the coming vote, one writer in the Bangkok Post newspaper assured readers that “constitutional referendums are commonly held in democratic countries around the world” (Tunya Sukpanich, ‘Referendum could be tipping point’, 25 March 2007). But this is only half the story. As the regime in Thailand intends to demonstrate, any government can use a referendum for any purpose. They are not a special characteristic of democratic countries. On the contrary, dictators like them too.
Louis Napoleon was the first modern autocrat to call referendums. In 1851 he used one to justify his overthrow of the French republic. The citizenry was offered a simple choice: Napoleon or chaos. Officials were warned that their jobs depended upon ensuring that the people didn’t opt for chaos. The opposition was harassed; the result was predictable. Napoleon made himself the second emperor of France, after his better-known uncle, and established a system of government that was a precursor to fascism: Adolf Hitler employed many of Napoleon’s methods, including referendum, to obtain his objectives.
Authoritarian rulers the world over have since made bogus appeals to popular opinion. General Augusto Pinochet used a plebiscite to pass the 1980 Constitution upon which the armed forces consolidated control over the government in Chile. Closer to home, Ferdinand Marcos called three—the last in 1976 amended the Constitution to keep him on as president, granted him special powers to declare an emergency, and gave him immunity from prosecution once out of office. In Sri Lanka, J R Jayawardene held one to extend Parliament by six years and propel his country into bloody madness that persists until today.
So the generals in Thailand are among friends. But what happens if their draft doesn’t get approved? That’s the clincher. Under section 32 of the interim Constitution, then the junta “shall hold a joint meeting with the Council of Ministers to consider and revise one of the previously promulgated constitutions.” Put simply, the choice for people in Thailand will be between a fraudulent draft charter and leaving the army to decide everything itself: not democracy, but blackmail.
Apart from its legalized coercion of the electorate, the regime has been trying hard to make sure that other conditions are right for the vote. All political party activity remained banned across the country up until the tribunal set up in place of the dissolved Constitution Court disbanded the former ruling Thai Rak Thai party and barred all its senior officers from their electoral rights for five years. Martial law has remained in force across half of the provinces, and military propaganda efforts have been in full swing. Persons speaking out against the draft have been accused of being against the country’s development and not wanting a return to electoral process, no matter how flawed.
Polls have tipped that at least 60 per cent of the population will vote yes for the new constitution. If this happens, it won’t be out of trust in the charter or government, but just to get the stupid thing over and done with. The generals are banking on this. As in France over 150 years ago, their referendum has nothing in common with those “held in democratic countries around the world” because Thailand is not a democratic country. Rather, the vote is intended to sanction traditional elite groups as the final arbiters of social and political conflict, over and above the general public. It is about the endorsement of fraud, just as it was for Louis Napoleon, Augusto Pinochet and Ferdinand Marcos. And like them and theirs, neither this regime nor its constitution will last.
Thailand’s real enemy is insincerity
Beware of news editors who write about “stakeholders”. The word may be popular among the staff of international development agencies, producing clouded reports about projects that they have never seen, but it is usually avoided by journalists, who are expected to be more straightforward.
The fact that “stakeholders” appeared no less than four times in a single Bangkok Post feature should set alarm bells ringing about the condition of journalism in Thailand. The unidentified writer praised the special tribunal that had just dissolved the overthrown Thai Rak Thai party and advised everyone that its verdict should be universally accepted and that they should all just move on (and on, and together, and on, and forward, and on):
The rulings should be accepted by all parties concerned, especially hardline loyalists of Thai Rak Thai (TRT). The verdicts serve as a lesson for unscrupulous politicians that they must play by the rules, or face the consequences… Democrat leader Abhisit Vejjajiva could not be more correct when he said the tribunal verdicts should put an end to all the uncertainties and worries which have gripped the nation for months. The country, he said, must move on, with all stakeholders moving together… The verdict should not be seen as the end of the world for the majority of TRT members, who can still participate in politics. With millions of supporters, they should move on… Of all the underlying problems facing the country, mutual distrust among the political stakeholders, which has resulted in the worst political divide ever seen in modern Thai history, seems to be the biggest challenge… For the country to move forward and avoid the kind of crisis which confronted it last year during the Thaksin regime, this atmosphere of mutual distrust must be cleared. Mr Abhisit recently floated the idea of bringing together five major political stakeholders… The country needs to look beyond the tribunal’s verdicts and move on. And for this to happen requires the cooperation of all stakeholders… (‘Now it is time to move on’, 31 May 2007)
The same person could have written the editorial in the country’s second English daily, The Nation. Although the stakeholders were gone, in a few hundred words the author managed to cram in reconciliation, good governance, public accountability, and, in a final mind-numbing paragraph political ideology, socio-economic status, effective citizenship, genuine democracy based on the rule of law, and “a conducive environment for sustainable economic and social development.”
Such writing is offensive because it denies readers the opportunity to think and react. It has the opposite effect of real journalism, anaesthetizing rather than awakening society. “The great enemy of clear language,” George Orwell said in his seminal essay on politics and English usage, “is insincerity.” Insincere prose is unpleasant to read because while the truth may not be obvious, the struggle to obscure it with nonsense is all too apparent.
Few newspapers in Thailand nowadays report or comment with any sincerity. Whereas the previous decade saw a dramatic rise in their assertiveness, the bullying and goading tactics of the Thaksin Shinawatra government encouraged renewed self- censorship. Among those writers and publishers that resisted Thaksin, many have since been shameless cheerleaders for the junta that pushed him out last September. Alternative opinions, occasionally entertained, give the illusion of continued debate; they are greatly outnumbered by narrow reporting and uncritical commentary. Yet even against this backdrop, the response to the May 30 ruling was a new low.
No doubt the former prime minister and his people manipulated laws and institutions to their commercial and political advantage. They intimidated opponents, precipitated killings and encouraged police excesses. But the superior courts were already examining and proceeding on suits lodged against him and his party prior to the military coup last year. Had they been left alone to rule on the government at that time in accordance with the 1997 Constitution then there may indeed have been a great day for justice in Thailand of the sort that was pronounced last week.
Instead, what happened was that a tribunal appointed by the military regime under its interim constitution was given the role of pretending to decide on something that was already settled from the moment that the army took power, applying a law established under the abrogated constitution together with an order from the coup leader. The cynical use of senior judges to do a dirty job for which the generals did not want to be directly responsible was no triumph of justice: it was a travesty that will almost certainly cause lasting damage to public confidence in the country’s entire judiciary.
But there was no room for doubt about the tribunal’s findings in most newspaper editorials and reports the morning after. Blinded by euphoria at the apparent end to Thaksin’s political vehicle, and corrupted by the moral and legal pollution of dictatorship, editors and writers feigning objectivity sought refuge in humbug. Only here and there were cautious questions raised about the validity of the judgment and jurisdiction of the tribunal, again greatly outnumbered by those reassuring readers that from now on everything will be okay, so long as everyone just plays by the rules. Never mind whose rules.
Whatever else happens in Thailand during the weeks and months ahead, the newspapers won’t quickly or easily regain the voice and credibility that they have lost in the last nine months. Readers interested in getting an honest opinion about events there should instead turn to the Internet, if they have not done so already. In addition to news available via the international media, there are a number of useful regional and national Web sites, such as Asia Sentinel and Prachatai. There are also many good blogs, like Bangkok Pundit and New Mandala. If enough people turn away from conventional sources, perhaps editors will realize that by persistently insulting the intelligence of their readers they risk much more than just their integrity.
Pakistan’s judiciary sets an example for Thailand
Dramatic events in both Pakistan and Thailand during the past year have brought their respective judiciaries to the centre of national politics. But whereas in Pakistan judges and lawyers have played a heroic role in challenging the authority of the army, in Thailand they have done nothing to come between it and its objectives.
On May 29 Pakistan’s top judge lodged an unprecedented complaint about his attempted dismissal, before his own court. In the historic affidavit, Chief Justice Iftikhar Muhammad Chaudhry described how on March 9 he was called to meet General Pervez Musharaff. In the presence of other army officers and officials, the general-cum-president asked him to resign over some unsubstantiated allegations. When he refused, he was detained for five hours while another judge was appointed in his stead. After he attempted to go to the court, his car was stopped.
Arriving back at his residence he saw police and other authorities cutting the telephone, television and Internet connections. His official vehicles were trucked off.
In subsequent days Chief Justice Chaudhry found that his chambers had been entered and files removed, his office and house staff detained and questioned, his colleagues and peers prevented from meeting with him, and his home apparently bugged. However, he refused to succumb and was able to mount a defence against his removal. He was not alone: most of the country’s senior judges and thousands of lawyers came out in protest at the way he was treated and to demand his reappointment. His petition against the president has been accepted, and a full court case is now set to ensue in which many other details of the military’s attempts to dominate the judiciary are likely to be revealed.
Meanwhile, at risk of their lives, Pakistan’s judges and lawyers have stimulated a huge outpouring of discontent against the military. The chief justice and his advocates have been attacked and threatened with death. Their houses have been fired upon; at least one court official was killed after refusing to support the government. Travelling to Lahore, they were met by tens of thousands of cheering villagers along the entire distance. The next trip had to be aborted when the army and its political allies initiated mob violence in Karachi, preventing the chief justice from leaving the airport and besieging the city’s courts. Still the judges and lawyers have not been deterred.
Compare this with what has happened in Thailand since last September, when the armed forces again took control of government. No need for the generals there to threaten the judges. They turned up for work like usual and did as they were told: no questions were asked about the legality of the coup; no objections were uttered when the Constitutional Court was shut down along with the constitution itself. And when a new tribunal was needed to dispense victors’ justice and abolish the former ruling party, the judges were again obliging. The president of the Supreme Court in Thailand has so far raised a finger against the army only once, in refusing to join the majority verdict of the tribunal to strip the former prime minister and his party executives of their electoral rights for five years, under an order from the junta, retrospectively applied.
It is important to understand that for the most part the judiciary in Pakistan has, like that in Thailand, gone along with the wishes of its military. Since 1954, when the then-chief justice endorsed the forcible removal of the prime minister from power, it has sacrificed legal principle for political expediency. Chief Justice Chaudhry too was no radical, but he did serve with integrity and in recent times had issued notices on cases of public interest, established a human rights cell within the court, and challenged government and military officials over writs concerning alleged abductions and killings by the security forces.
So then why have Pakistan’s judges and lawyers now resisted whereas Thailand’s have not? Maybe it is that some notion of constitutionalism and judicial independence is still cherished in Islamabad, one that remains foreign to Bangkok. Prior to the 1997 constitution there was never any concept of a constitutional order in Thailand other than whatever was imposed by the ruling elite. Its senior judges now seem only too eager to revert to that earlier model, perhaps thinking that it will not do them any harm personally. They are wrong: by failing to take a stand and by going along with the army, they have caused a self-inflicted wound. With the eyes of the world upon them, they have succeeded only in joining with the generals to mock themselves.
Given the chance, what might the judges and lawyers of Pakistan say to their counterparts in Thailand right now? We have a clue from the president of the Supreme Court Bar Association of Pakistan, who remarked on May 26 that
The great American jurist Benjamin N. Cardozo said, ‘The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.’ We are all caught in that same tide today, and only our own actions now will determine whether we sink or swim. Those that do not learn from the past are condemned to relive it.
Thailand’s judiciary too should pay heed.
Ransacking and reining in the ‘rule of law’
Since October 2006 the new interim prime minister of Thailand, General Surayud Chulanont, has stressed his strong interest in the “rule of law”. What does a prime minister installed through a military coup mean when he talks about the rule of law? What interest does the army have in this notion? Recent history gives a clue about their real intentions.
In 1975 thousands of striking police joined protesters demanding that the “rule of law” be restored to Thailand, after a court ordered the release of nine alleged communists in the northern city of Chiang Mai. The protests culminated in around one hundred armed and uniformed police ransacking the house of the civilian prime minister, Kukrit Pramoj. They were never punished. The prime minister declined to take legal action; 14 months later police led a massacre that preempted renewed military dictatorship. Rhetorical commitments to the law were backed with lawlessness, and ultimately, the justification of order by force, with or without law.
In 2006 thousands took to the streets to demand the ouster of Thaksin Shinawatra, who was accused of manipulating laws and financial institutions to serve personal objectives. His party began organizing counter protests, and allegedly arranged for physical attacks on critics. As in previous years, the pretext for the army takeover on September 19 was to protect the country from growing lawlessness and incipient bloody confrontation. The interim government has iterated that it will work hard to correct the wrongs of its predecessor by restoring the law to its rightful place.
Like the police in 1975, the concern of the generals in 2006 was not with the rule of law, but with the control of law.
In Thailand, the judiciary remains in essence an institution to protect elite interests. By contrast, the rule of law requires a strong and independent judiciary, free from control and able to enforce its decisions against all persons equally. Control of law means impunity, the rule of law means liability.
What offended the police in 1975 was not that the law itself was in danger, but that their control of the law and its institutions was in danger.
What worried the military in 2006 was not that the courts were unable to address the country’s problems, but on the contrary, that they might be able to do so. It was the rule of law, not lawlessness, which had to be averted at all costs. But in preventing the rule of law, its meaning has been perverted, as in 1975, to correspond with control of law. The wreckers of law can then claim to be its saviors.
Since the September 2006 coup, the army has ransacked institutions for the rule of law in Thailand and reasserted its prerogative to control. A senior court has been closed, reconstituted and pushed about without a whimper of protest. The interim constitution has given all orders by the coup leader the effect of law: they will require parliamentary acts to be revoked. Talk of judicial review of executive actions has been forgotten. Investigative bodies have been coordinated by a revamped counter-insurgency agency under army command. Anybody connected to the former government has been removed and replaced by somebody connected to the coup group. Political activity has been banned, and half of the country kept for an extended period under martial law.
Still this is not enough; generals need guarantees. Like earlier army-sponsored constitutions, the interim charter of 2006 contains a clause exempting them from prosecution. The provision is likely to be retained, albeit more vaguely worded, in the new draft permanent constitution (section 299). This would be unprecedented. The chairman of the drafting committee, Prasong Soonsiri, has expressed concern that otherwise ill- intentioned persons might later have the audacity to take legal action against the coup leaders, which “would not be just”. Thus it is implicitly accepted that a category of persons exists that is entitled to remain outside of the law. This is not the rule of law but its antithesis.
Justice institutions in Thailand, like the former prime minister’s house, have been ransacked and brought back under control. Anybody expecting this to have the effect of restoring stability, democracy and respect for human rights to Thailand is fooling himself.