A few years ago, some senior United Nations staff in Cambodia met with a government minister to discuss the state of the country’s courts. They expressed concern about their lack of independence, and asked what intentions the government had to address this problem. “Don’t worry,” the minister told them simply, “I will make them independent.”
This story is relevant to Thailand today. The military generals who took control of the country on September 19 seem to have the same misunderstanding about the nature of justice and the meaning of judicial “independence”. They too appear to think that having abolished the constitution and disbanded one of the country’s three highest courts, ordering the establishment and composition of a new tribunal in its stead, judges can be made independent by virtue of saying that it is so.
Section 18 of the Constitution of Thailand (Interim) 2006, which was signed into law by the head of the military junta, reads: “Judges are independent in the trial and adjudication of cases in the name of the King and in the interest of justice in accordance with the law and this Constitution.” Section 35 goes on to order the appointment of a new tribunal in place of the Constitutional Court, comprising of judges from the two remaining senior courts.
These provisions in fact do nothing to ensure the independent functioning of courts in Thailand. The independence of judges cannot simply be declared. It is by the effective functioning of institutions and maintenance of safeguards that judges obtain true independence. The declaration in this so-called constitution is also itself directly contradicted by the order to replace a superior court with a tribunal, and stipulation of its membership, on the signature of a military officer who obtained power by force.
Above all else, the independence of judges is ensured by security of tenure. This means that judges cannot be removed and appointed on the whims of the executive or any other part of government. It means that courts cannot be opened and closed on the prerogative of any one person or agency outside of the judiciary. It means that judges, once appointed, are not easily or quickly removed.
Innumerable commentaries and precedents established around the world recognise security of tenure as vital to the integrity of the courts and maintenance of the rule of law. In the Federalist Papers, three framers of the United States constitution note that “nothing will contribute so much as this to that independent spirit in the judges”. It follows that the 1985 UN Basic Principles on the Independence of the Judiciary have declared: “Judges, whether appointed or elected, shall have guaranteed tenure.”
The 1997 Constitution of Thailand, while by no means perfect, laid down clear guidelines with checks and balances designed to protect judges’ independence, through procedures for appointment and maintenance of tenure. It recognised the principle of independence through serious efforts to see it obtained via institutional arrangements. The interim constitution has no such contents. Nor does the junta have any genuine interest in such matters. Its appointing of a new constitutional tribunal instead defies the very notion of judicial independence. Its orders to various government agencies to go after members of the former government reveal that its interests are limited to the exercise of “justice” as justification for its own illegal acts, rather than to uphold any notions of the rule of law.
The Asian Human Rights Commission calls upon the new interim prime minister of Thailand, General Surayud Chulanont, to abandon the planned establishment of new judicial and legislative bodies until after the holding of a new election. The sole purpose of the interim government should be the making of arrangements for an elected legislature. At that time, not before, discussions may begin for the drafting of a new permanent constitution and arrangements for the superior courts.
The Asian Human Rights Commission also calls upon the judiciary in Thailand to resist all attempts at interference in its workings by the military junta. Specifically, it calls upon the Supreme Court and Supreme Administrative Court to refuse to establish the proposed Constitutional Tribunal, on the ground that it amounts to a grave violation of judicial independence. It calls upon the superior courts to again take up the role of judicial review in matters concerning the entire nation, as they were doing prior to September 19, and declare the assumption of power and declaration of a new interim constitution by the coup group illegal. And it calls upon members of the legal profession, in particular the Lawyers Council of Thailand, to take a lead role in discussing the implications of the abrogating and redrafting of the constitution and scrapping of the Constitutional Court on the independence of judges in Thailand.
To be sure, the courts in Thailand are not independent today. No pronouncement by an army officer will make it so. But a determined response from judges, legal professionals and concerned persons there could go some way towards restoring what has been lost since September 19.
