On April 9 the King of Thailand called upon a new group of superior judges to ensure that they “maintain justice”. The King pointed out that more than ever public confidence in the judiciary depends upon them. They are vital to the peace and survival of the country, he said; their task is not easy, but they should try their best.
The question that naturally arises from the King’s speech is whether or not it is possible to maintain justice in the contaminated moral and political atmosphere that exists in Thailand today. What happens to justice when the army throws away the only genuine constitution that the country ever had? What happens to justice when it shuts down a higher court and sets up something else in its stead? More fundamentally, upon what does justice depend?
First, justice depends upon all persons being subject to ordinary laws and courts. But today in Thailand, certain categories of persons are beyond the law. Soldiers, police and other officials acting under emergency regulations in the south, or martial law that remains in effect in over half of the country, are protected from prosecution for acts that would otherwise be considered criminal. The coup leaders have also had an immunity clause for themselves inserted into the interim constitution, which will be carried over in some form or another after their time is up.
Second, justice depends upon some kind of judicial review of executive and legislative actions. It means that the courts are capable of commenting upon the legality or illegality of actions by the other parts of the state. Before the army took power last September 19 there had been a strong acknowledgment of the need for judicial review, in light of the many abuses of the former administration. Since that time, all discussion of the notion has ceased. As previously, the superior courts quietly acquiesced to the military takeover, and the judiciary was again made a subordinate, rather than an equal, of the other branches of government.
One year ago, when the King then addressed senior judges, they were asked to consider what role they could play to get the country out of a crisis. How could they give real meaning to the word “justice” in Thailand? What part could they have in strengthening the institutions and norms of the 1997 Constitution?
Now the questions are much more basic. Does the judiciary in Thailand have the authority to insist upon justice at all? Does it have any determination to make all persons subject to the same laws? Is it in any way independent?
The shortest and most honest answer to all of these questions is “no”. The courts in Thailand are today increasingly alienated from the legal, administrative and political changes that are going on around them. Senior jurists have been set the task of getting rid of some political parties, and the rest have been left to mind their own business. Meanwhile, a new constitution is being cobbled together at the behest of the generals out of whatever is at hand and criminal investigating agencies are all being brought back under their direct control. Despite some years of warnings, the southern conflict is spiralling rapidly into outright madness and justice is even more removed from the people there than ever.
The Asian Human Rights Commission is alarmed at the dramatic decline in the prospects for justice in Thailand between the time of the King’s speech last April and that of yesterday. It calls upon all concerned persons in Thailand, especially judges and lawyers, to use the occasion of his speech to examine urgently and discuss openly the direction in which their country is being dragged by the military and its supporters: that is, away from public participation, constitutionalism and the rule of law, and back towards impunity, fear and authoritarian rule under the guise of formal democracy. Then it must be asked, under these conditions, upon what, and whom, can justice really depend?
