Something very big is happening in Thailand. In recent weeks, people there have been in the grip of a constitutional debate that will have a lasting impact on their society. In fact it is a moment that has caught widespread attention and brought into public discussion some of the deepest complications when rooting democracy and the rule of law in any country.
The debate was brought to a head by the patent illegitimacy of the April 2 election, which was boycotted by all major parties except for the Thai Rak Thai party of Prime Minister Thaksin Shinawatra. However, it began earlier, with growing resentment against the prime minister over allegations of gross corruption, which boiled over when his family sold its telecommunications empire to a Singapore-based corporation, tax-free. Since he was elected with an overwhelming majority in 2001, Thaksin had consistently manipulated the law in order to punish and intimidate opponents in all sectors, and to his personal advantage. He has sued critics, played with loopholes and appointed cronies to positions of importance in all parts of government. The parliamentary majority his party had controlled was used to subvert the very exercise of democracy itself, to the detriment of the rights of all people in Thailand. With the sale of Thaksin’s family company, the veneer of legality was cracked open.
During massive protests in February and March, hundreds of thousands of ordinary citizens called for the prime minister’s resignation. Pressed into a tight corner, he instead dissolved parliament and called a snap election for April 2. Opposition parties were left with insufficient time in which to organise and campaign. In an unusual show of solidarity, all major opposition parties boycotted the poll, in response to public calls for non-participation. Despite a big campaign from the ruling party, the boycott had a huge impact. In some seats government candidates running unopposed failed to get the minimum 20 per cent vote needed to enter parliament. In others, minor parties allegedly paid to run against Thai Rak Thai members, in order to overcome the 20 per cent rule, obtained more votes than the government candidate–although still only from a tiny fraction of the number of registered voters.
Given the massive boycott of the election by large numbers of people throughout the country, the moral validity of the election was questioned from the beginning. As the discussion gained momentum, it increasingly revolved around which authority could determine the poll’s validity. There were growing calls for the King to intervene. However, on April 25 the King told the country’s senior most judges that they, not he, must solve the problem.
The Thai courts have not played a leading role in solving the country’s constitutional and political crises in the past, although the 1997 Constitution established the Constitutional Court and Administrative Court alongside the Supreme Court with this purpose. After the King’s exhortation, the three courts met, leading to a decision by the Constitutional Court, by nine judges to five, that the election was invalid. The court recognised serious legal and procedural objections to the election, in particular, that in some places a secret ballot had not been observed.
The courts’ interventions led to further questions over the impartiality and competence of the Election Commission, another agency created out of the 1997 Constitution. The commission was envisaged as a watchdog to put an end to the fraud and wrongdoing that plagued earlier elections in Thailand. However, the overwhelming feeling is that the existing commission has failed in this role. The permanent secretary to the Supreme Court president has called on the Election Commission to resign as the best way to resolve the impasse caused over the failed election. The chairman has refused to step aside, although one of the commissioners departed on May 16. However, there is now massive public pressure on the commission and it is hard to see how it will escape responsibility for the failed election, despite the emerging fact that its members seem to be beyond the authority of the courts. Hundreds of individual law suits have been filed against it by private citizens in a collective attempt to have its remaining members back down.
The issues that are now being debated are of vital importance to the future of democracy and human rights in Thailand. Foremost is the role of the judiciary and the powers and procedures that should be in place for people to have recourse to it when matters of national importance arise. The new-found strength of the higher courts may lay the ground for future occasions when a firm and immediate role is required of them. It is also quite likely that the debate on development of actual provisions within the constitution itself will continue to grow and facilitate the expanded role of the judiciary.
The immediate question is whether or not the Election Commission can continue to function. The holding of a free and fair election depends very much on the commission’s impartiality. Where public perception is that the commission has committed gross violations of its own rules, there is no choice but to replace it, and to ensure that the rules are held in place by the courts and scrupulously followed by its successor.
In this regard, the provisions of the 1997 Constitution and accompanying laws on the independent bodies it created seem inadequate. Independence can only be meaningful when accompanied by accountability. Accountability and proper functioning can be ensured only by the oversight of a strong and effective judiciary. Judicial supervision is not a constraint on independence and impartiality; on the contrary, it is a guarantee. The Election Commission, National Counter Corruption Commission, Ombudsmen and others carry out administrative functions that must be subordinated to the judiciary, lest they by hijacked by their members with the wrong motives. This is particularly important in a country like Thailand, where powerful authoritarian forces may easily erode the stated independence of such bodies. At that time, the only effective recourse can be through the judiciary.
It need not be said that there are much larger issues at stake for the people of Thailand than a mere election. At their heart is the question of how to ensure that the country’s democracy, obtained through a century-long struggle, is reinforced against all attempts at a return to authoritarianism. The test of democracy in Thailand is only just beginning. The threat of authoritarianism remains strong, but the people of Thailand have the will to over come it, starting with the present Election Commission.
