On 30 May 2007 Thailand’s senior judges participated in a farce that was not of their making but has, thanks to their acquiescence to the country’s military regime, been made to appear one of their doing. By sanctioning a decision that was made well before 19 September 2006, they have caused immense damage to already diminished judicial institutions, with far-reaching consequences.
The military-appointed Constitutional Tribunal–comprising of six Supreme Court judges and three Supreme Administrative Court judges, including their presidents–dissolved the Thai Rak Thai party of the former prime minister, Pol. Lt. Col. Thaksin Shinawatra, on grounds of endangering and acting against the democratic state under the 1998 Organic Act on Political Parties, and removed the electoral rights of over one hundred party board executives, including Thaksin, for five years in accordance with Announcement No. 27 of the military coup group. Thus we have the spectacle of a group of judges appointed by an unelected and antidemocratic military regime making a decision on the actions of an elected political party that is alleged to have undermined democratic process. And we have the absurdity of a decision made on the basis of law established under a constitution that was scrapped by that very same military regime, with punishment approved and meted out to a group of individuals under one of its orders. Little wonder that the verdict has only further contributed to the confusion that has reigned in Thailand for the last eight months.
The former government was responsible for gross human rights violations, abuse of power and wanton manipulation of national institutions. Let us be unequivocal about that. The Asian Human Rights Commission for years documented and reported on its blatant disregard for international standards and the rule of law, and strengthening of the police as an agency for crude infringements upon citizens’ lives and liberties. But let there also be no doubt that neither this ostensible tribunal nor the junta that birthed it could do anything other than make things worse. As has become painfully clear since last September, the military is set upon dragging the country back to a 1980s model of authoritarian control, and has spent most of its energies since in getting all necessary institutions firmly under its command before it steps down from its caretaker role. However, whereas the army cannot be expected to protect the interests of the judiciary, when judges themselves are responsible for rubbishing their own institutions then what are the consequences? Quite aside from the effect of yesterday’s decision on political parties, the real unanswered question is what effect will this judgment have on the courts?
For an answer, there is an important and highly relevant precedent, although it is not among those from former military takeovers in Thailand that the judges cited in their ruling. Rather, it is from the Supreme Court of the United States, which in 2000 was asked to decide on a handful of votes in Florida upon which the presidency was to be decided. Although the court upheld the petition of the current incumbent, four dissenting judges made clear that they should never have taken up the matter in the first place. There was no legitimate question of law for them to consider, Justice Breyer observed, and by accepting the case the court threatened public confidence in the judiciary: it risked a self-inflicted wound… that may harm not just the court, but the nation. Justice Stevens went further. What underlay the petition to the Supreme Court, he said, was an unstated lack of confidence in the impartiality and capacity of the state judges to do their jobs. And he continued,
The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.
No more apt remark could be made of Thailand today. The coup of September 19 was itself an enormous demonstration of a lack of confidence in the capacity of the senior judiciary to resolve thorny political and legal problems and review the legality of government actions in Thailand. By appointing a new tribunal in the stead of the Constitutional Court and setting it upon the former ruling party, the coup group cynically called upon the tribunal members not only to endorse the army’s displacement of the preceding political order, but also its attack on a nascent legal order that may in time have posed a threat to its interests. By complying, the judges have wounded their own authority and greatly risked lasting damage to public confidence in their integrity. Whether or not time will one day heal the wounds in Thailand remains to be seen, but as in the United States seven years earlier today the identity of the real loser is perfectly clear.
