Sunday, May 13, 2007

Asian Sentinel: A Critical Look at Thailand's Third Branch's Role in the New Constitution

The Rise of Thailand’s Third Branch

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Daniel Ten Kate

11 May 2007

Some fear Thai judges are overstepping their bounds — but that may be exactly what the junta wants.

What a difference a year makes. On May 8, 2006, Thailand’s Constitutional Court made a landmark decision to void a boycotted election held the previous month in which Thaksin Shinawatra’s Thai Rak Thai party won a decisive victory.

At the time, many here lauded the judges for stepping up and checking the power of Thaksin’s so-called “parliamentary dictatorship.” But now many fear the men in robes may be amassing too much power.

The controversial ruling on the election came just two weeks after King Bhumibol Adulyadej gave an unprecedented speech to the country’s top judges. With the prospect of a one-party Parliament looming due to a boycott from the three major opposition parties, the king instructed the judiciary to sort out the mess.

“Judges have the right to speak out and make a ruling,” Bhumibol told the Supreme Court judges. “Therefore I would like to ask you to consider, consult with other judges of other courts such as the Administrative Court, about how to work it out and do it quickly. Otherwise the country will collapse.”

At the time, Thaksin’s opponents (those who opposed a coup, anyway) saw the judicial branch as the only counterbalance to the premier’s stranglehold over the executive and legislative branches. With a new mandate from the king, the country’s supreme moral authority, the judges wasted no time.

I agree wholeheartedly with the assessment of this article. The Judge's Constitution is nothing but an overreaction to what the King Bumibol said regarding last year's mid year election debacle.

I have no evidence to back me up, because the king doesn't speak about these subjects often, but I doubt his intention last year for the courts to get involved in solving the boycott crisis/election commission actually meant that he wanted the courts to be intimately involved with the running of the country.

Although the military’s power increased with the putsch, the legacy of the king’s April 2006 speech lives on. The draft constitution seeks to cement a new political role for judges by giving them a host of new responsibilities, including helping to appoint members to the Senate, the Ombudsman's Office, the National Human Rights Commission and the State Audit Commission — all in addition to previous duties to help select the Election Commission, National Counter Corruption Commission and Constitutional Court. Moreover, the draft calls for the Supreme Court president to meet with other judges, leading political figures and heads of independent bodies in times of national crisis.

Prasong Soonsiri, who heads the Constitution Drafting Council, told reporters the drafters wanted to enlarge the judiciary’s role so the king would not be troubled. The CDC was simply following the king’s advice in his April 2006 speech, he said.

The question that nobody seems to ask is where were the judges when Thaksin was accused of so many different conflicts of interest and crimes against the constitution.

My interpretation of the king's speech was that the judges needed to step up at doing their real jobs rather than get involved with politics.

My personal feeling is that if the judges had been taking their jobs seriously from the time of the assets case against Thaksin to the time of the election last year, many of the Thaksin problems could have been averted. For example, the courts backed Thaksin's questionable emergency decrees when there obviously were no emergencies.

The reason we are where we are at is because the courts and the Senate didn't do their jobs at checking the power of the executive. There are some who think Thaksin was an all powerful devil who had total control through black magical powers, but the fact is that those who were in charge of watchdog agencies weren't taking their watching seriously.

Anyway, if the courts were cowered by Thaksin and didn't check his power, then why should we expect them to act any less incompetently during the next government? In other words, if the judges couldn't properly execute their duties under the 1997 constitution what makes anybody think they will do better with the extra workload.

Another thing that disturbs me is that none of these fools who are writing the constitution have any understanding of political theory, especially checks and balances and republican forms of government that spread and dilute state power.


Anonymous said...

"Anyway, if the courts were cowered by Thaksin and didn't check his power, then why should we expect them to act any less incompetently during the next government? In other words, if the judges couldn't properly execute their duties under the 1997 constitution what makes anybody think they will do better with the extra workload." - Absolutely Correct Ponzi!

Nothing is wrong with the 1997 constitution. It was that malicious toxin of a monster Thaksin who managed to usurp nearly absolutely powers by suborning the courts, the senate, the generals, the watchdog agencies and every venal politician and voters eager for his handout. What money could not buy, Thaksin employed intimidation from the powers of his office and his billions (multi-billion lawsuits).

So if this Surayud/General Sonthi duo cannot prevent a Thaksin political comeback, whatever new constitution written will just be as useless as the 1997 version being replaced.

anon said...

bullshit, matty. The 1997 constitution was designed to increase the stability and power of an elected government. Thaksin wasn't the problem, the bureaucrats who run the so-called independent agencies were. In any case, Thaksin didn't have absolute powers over the generals - if he did, would the coup have been so easy to accomplish?

hobby said...

Lets look on the bright side - Thaksin's gone!

Another good thing is that a whole range of questions are now being asked about what went wrong and how can things be improved in the future.

The downside is that people are still being defined as pro- Thaksin or anti-Thaksin.
Because they are against the coup and what it stands for, many sensible people have allowed themselves to be placed in the pro-Thaksin camp. That's a real shame because Thaksin has done enough to show that he is not the right person to lead (control) the country, and he should be made to stick to his word when he says he is finished with politics.

Likewise, many of us who are against Thaksin, have allowed ourselves to be placed in the pro-coup camp which suits the junta.

We need to get away from such black and white distinctions, otherwise the winner in this situation will either be the junta or Thaksin, and in both cases the loser will be Thailand.

Awzar Thi said...

A properly formulated charter defining, expanding, and protecting the power of courts in Thailand can only be a good thing, though no such document exists. On the contrary, it is a hurried attempt at devising ways and means for the ‘old order’ to exercise its prerogatives through a judiciary whose responsibilities over a century have been configured to its national figurehead, rather than its citizens. This is not a judges’ charter but a generals’ charter dressed in judges’ clothing. Thailand’s judiciary is not on the rise but rather as usual just on for the ride.

Read more:
"A generals' charter in judges' clothing"