Retrospective law

1 10 2014

Back in 2007, the then Constitutional Tribunal, established under the authority of the military junta in 2006, decided to dissolve the Thaksin Shinawatra Thai Rak Thai Party and several other political parties.

Part of the Tribunal’s decision was based not on existing law at the time of the alleged offenses, but on Announcements by the military junta. This raised serious questions regarding the retrospective use of law – in this case, announcements by a regime that was essentially illegal, coming to power by illegal means.

Globally, the use of retrospectivity is still relatively unusual. One author argues that “the definitive argument against retrospective rule-making is the expectation of individuals that, if their actions today are considered by a future court, the applicable law was discoverable at the time the action was performed.”

We are not legal eagles at PPT, yet we have to wonder if the current military junta is embarking on yet another use of retrospective law, this time setting up a process that seems aimed at Yingluck Shinawatra.

At the Bangkok Post it is reported that the National Anti-Corruption Commission (NACC) “has reaffirmed its authority to start the process of impeaching politicians even though the 2007 constitution was scrapped.” That reaffirmation might set an alarm off, even if the 1999 anti-corruption organic law remains in place.

Yet the NACC also decided that the junta’s puppet National Legislative Assembly “could proceed to impeach them under Section 6 of the 2014 interim charter…”.

The puppets seemed initially reluctant about proceeding on charges related to a scrapped charter so asked the NACC to “rewrite the papers so that the offence is based on the laws in effect today and links to the NLA’s mandate to impeach persons in office…”.

Manufacturing law to suit those in power at the point of a gun is not unusual in Thailand’s long and sorry history of military interventionism, yet the retrospective use of law is something other than rule of law.

 





Unenforced amnesia

21 09 2014

Our header is probably as polite as PPT can be about a report in Khaosod that says “[l]eading members of the Democrat Party have denied the allegation that their party supported the anti-government protest campaign that was launched at the end of last year.”

Any one with even the slightest knowledge of the events associated with the anti-democrat movement will recognize that this is a lie.

In amongst all of the lies of recent years, this is probably the whopper to beat all whoppers.

abhisit and whistleApparently, the “leading” members of the so-called Democrat Party was brought on by “a complaint filed by Redshirt activist Sa-ngiam Samranrat to the Constitutional Court, asking the court to dissolve the Democrat Party on the grounds that it engaged in politics through non-parliamentary means.”

abhisit whistle suthepSa-ngiam complained about “the involvement of prominent Democrat party leaders in the six months of street protests staged against then-Prime Minister Yingluck Shinawatra starting last November.” That anti-democrat movement was led by former deputy premier and secretary-general of the Democrat Party, Suthep Thaugsuban. The entire leadership of Suthep’s movement were “former” members of the Democrat Party. Democrat Party leaders including Abhisit Vejjajiva repeatedly joined the protests and appeared with its leaders.

Wirat Kalyasiri, director of Democrat Party’s legal department, fibbed that:”The party did not organise the protests…”. He said “Suthep and other Democrat leaders had already resigned from the party when they joined and organised the protests.” That may be accurate. However, Democrat Party members were all over the rallies, stage and more. Only eight resigned from the party.

Just in case this defense isn’t convincing to anyone, Wirat “insisted that previous court rulings deemed the PCAD protests legal, peaceful assembly.” That kind of lie is about having one’s cake and eating it too. We weren’t supporting it, but if we were, the courts side with us.

Nipit Intarasombat, deputy chairman of Democrat Party, said “his party never agreed to endorse the PCAD protests.”

Funny, really, that Nipit says this now when he was one of the Democrat Party leaders who was directly involved in organizing the movement that became Suthep’s anti-democrats.

As we posted at the time, Kalaya Sophonpanich was one of the “first leading Democrat [Party] figures to appear on the anti-government People’s Army stage at Lumpini Park…”. Two days before that, Kalaya “joined Democrat MPs Kasit Piromya, Nipit Intarasombat and Chalermchai Srion to meet People’s Alliance for Democracy (PAD) leaders to talk about forming an alliance.”

Under the military dictatorship lies are standard operating procedure, and so we doubt that anyone will raise an eyebrow. In any case, unless The Dictator declares otherwise, the Constitutional Court is unlikely to ever find against the Democrat Party.





Red shirt response

10 05 2014

Several readers chided PPT for observing in a recent post that “Red shirt protests about this so far seem feeble.” At the time we wrote that, the official red shirts were preparing a rally, well away from Bangkok to protest the Constitutional Court’s politicized decision-making. There is now an official red shirt response.

The Bangkok Post reports that Saturday’s red shirt rally was large and represented “a robust red response.” Andrew Spooner writes of the rally:

… over 100,000 pro-democracy Red Shirt activists gathered in a suburb of Bangkok to express their resistance to the Thai establishment’s moves to derail a fairer, more accountable society. That powerful and supposedly ‘educated’ Thais – like the cabal of well-groomed thugs in expensive suits who lead the PDRC/Democrat Party – are so ready to destroy Thailand’s hard fought for democratic gains whilst risking civil war, reveals them to be closer to nihilists than a credible political alternative.

He also notes what might be a warning to the red shirts – armored vehicles moving through Bangkok.Armor

According to the Post’s report, for the official red shirts, the line in the sand is not the Constitutional Court’s decision or the National Anti-Corruption Commission’s dubious decision to refer charges against Yingluck Shinawatra nor is it the Election Commission’s determination to not hold and election. Nor is it the anti-democrat’s illegal occupation of Government House or the senate’s unconstitutional actions. The line in the sand is any attempt to remove what remains of the interim government.

Jatuporn Promphan delivered a fine account of why the anti-democrats, in cahoots with the royalist elite and their tools in the judiciary and senate, are engaged in illegal actions. Yet these anti-democrats can pretty much do as they want. The sandy line is supporting the lame duck government:

Jatuporn said the UDD was ready to continue its rally for as long as it takes to support the government. The sight of tents along a four-kilometre stretch of Aksa Road, not far from a residence of His Royal Highness Crown Prince Maha Vajiralongkorn, indicated people were willing to stay for a week or longer.

He said the UDD would try to exercise full tolerance and not move anywhere yet.

“As long as the country’s democracy is not safe, we will be here,” he told reporters. If there is a coup or an unelected prime minister is installed, the red shirts will “escalate our fight immediately…”.

 Meanwhile, Suthep Thaugsuban has all but declared that he is in charge:

“The people hope there will be a new prime minister of the people by Monday. If not, we will have no choice but to take action by ourselves. We can’t allow the country to continue like this anymore,” Suthep said.

“From tomorrow [Sunday], we will issue statements. And I will read the statements inside Government House.”

Suthep is now ensconced in Government House with the armed and extremist Students and People Network for Thailand’s Reform group, led by PAD’s  Nittithon Lamlua, at his side. He is joined by PAD’s Chamlong Srimuang and his Dhamma Army, and all of the other PAD leaders. It is looking increasingly like 2008, when the elected government was overthrown with barely a whimper. Could that happen again? The events of 2009 and 2010 suggest it shouldn’t, but the path across the line in the sand seems defined.





With 3 updates: Some reactions to the verdict

9 05 2014

A Wall Street Journal editorial:

Thailand’s Aristocratic Dead-Enders
The royalists who can’t win an election stage a judicial coup.

Royalist forces struck another blow against Thai democracy Wednesday when the country’s Constitutional Court staged a judicial coup and removed Prime Minister Yingluck Shinawatra from office. Her supposed crime: having impure motives when she transferred a bureaucrat three years ago. For the third time in a decade, this unaccountable institution controlled by the aristocracy has removed an elected leader for dubious reasons.

The justices’ meddling rewards the bad behavior of the ironically named royalist Democrat Party. It boycotted the general election in February after several of its leaders led street protests aimed at overthrowing democracy and installing a ruling council made up of the country’s elite….

The Constitutional Court’s decision this week is a last gasp of the old regime, discrediting itself as it fights to hold back the forces of democracy. One can hope that a wiser leader will emerge from the royalist camp who will realize this and stop trying to overthrow democracy…. For now, though, it appears the aristocracy is not ready to give up its claim to a divine right to rule Thailand and accept the more modest role of loyal opposition.

Academic Paul Chambers:

“This court has a tradition for making ridiculous decisions…. Thailand has become a juristocracy.”Chambers - Copy

Chambers at Khaosod:

“I think once again we have a judicial coup in Thailand,” …

“Thailand has a form of democracy [sic.], but there is no real balance or checks…. What we have here is juristocracy – the judicial branch is head and heels above the legislative and executive branches of the government, and it’s supported by traditional institutions.”

… “This constant replay of courts issuing ridiculous verdicts may cause people who have believed in Thailand’s democracy to stop believing in it,” said Professor Chambers.

Chiang Mai University law lecturer Somchai Preechasilpakul:Somchai - Copy

“The verdict appears to indicate that all Prime Ministers who do not come from the Democrat Party will be eventually removed by the so-called independent agencies…”.

Professor Kevin Hewison at The Conversation:

Because the country’s judiciary is so highly politicised, decisions that defy legal logic have become the norm, with the judiciary consistently acting against elected governments. In essence, such decisions, sometimes based on flimsy accusations and charges by opposition activists, undermine the very democratic processes the judiciary is supposed to protect.

There was never any doubt that the Constitutional Court would oust Yingluck once the case was referred to it. Indeed, the court reached its decision – which took almost two hours to read – within a day of hearing the last of Yingluck’s evidence and witnesses. That is evidence enough that the court had its verdict before hearings were concluded.Hewison - Copy

Such obvious political bias also suggests an orchestration with those opposed to the government. The decision will reinforce views among the government’s supporters that Thailand’s political system is inherently supportive of the royalist elite. They see this elite as not just opposed to the will of the majority as expressed in elections but also as manipulating law and politics to protect their economic and political power.

South China Morning Post:

Ultimately undone by Thailand’s courts, Yingluck Shinawatra laboured under claims she was a stooge for her exiled brother. Yet the kingdom’s first female prime minister also displayed unexpected resilience during a turbulent stay in office….Montesano - Copy

“History will give Yingluck great credit for her conduct since November,” said Dr Michael Montesano at the Institute of Southeast Asian Studies in Singapore.

“She has scrupulously avoided the use of state violence … maintained the dignity of her office and displayed humanity rather than arrogance while under great pressure.”

Update: Duncan McCargo at FT:

The conflict is pitting an entrenched elite that is destined to lose power against new political forces whose rise seems inexorable. Ousting Ms Yingluck on a technicality was an act of desperation, not a show of strength.

Update 2: A Coup by Another Name in Thailand By The Editorial Board of The New York Times:

It was the third time the justices have removed the head of the government in recent years using dubious legal reasoning…. Thailand, which has managed to grow despite its chaotic politics and frequent coups, appears to be approaching a breaking point.

Update 3: The Daily Beast:

An ‘iron triangle’ made up of the army, senior judges, and royalist supporters continues to deconstruct Thailand’s democratically elected government by means of a rolling judicial coup,” says a retired U.S. diplomat. “It is this iron triangle rather than the country’s electorate that determines who will govern here in Thailand. This iron triangle has deposed three democratically elected prime ministers since 2006 and is on the cusp of deposing a fourth.

 





Media reporting the verdict

7 05 2014

Rather than try to provide a commentary on the verdict by the Constitutional Court against Yingluck Shinawatra and 9 cabinet ministers, PPT initially provides a selective round up of media reports:

Ji Ungpakorn: “Judicial Coup – a blow to democracyYingluck Shinawatra

Khaosod: “Yingluck Removed, But Political Vacuum Averted

Khaosod: “Democrats Urges Entire Cabinet To Resign

Bangkok Pundit: “Yingluck and 9 Ministers removed from office, but caretaker Cabinet remains

Siam Voices: “Thai court ousts Yingluck; Cabinet appoints new PM

The Nation: “Yingluck Ousted

The Nation: “Govt to push ahead with poll

Bangkok Post: “Yingluck removed, Niwatthamrong acting PM

Bangkok Post: “Yingluck insists she’s innocent

Bangkok Post: “Reds vow to retake Chaeng Watthana

Bangkok Post: “‘Ko Tee’ declares war

Bangkok Post: “PDRC mass rally changed to May 9

Bloomberg: “Yingluck Ouster Puts Spotlight on Thai July Poll

From Ji Ungpakorn's blog

From Ji Ungpakorn’s blog

The Guardian: “Thai court orders Yingluck Shinawatra to step down as PM

BBC: “Thailand court ousts PM Yingluck Shinawatra

AP: “Yingluck Shinawatra, Thai Prime Minister, Forced To Resign Over Abuse Of Power

New York Times: “Court Orders Thai Leader Removed From Office

South China Morning Post: “Thai leader Yingluck Shinawatra was more than just her brother’s clone

The Independent: “Thai prime minister Yingluck Shinawatra ousted over corruption allegations

Financial Times: “Thailand court ousts Yingluck Shinawatra over ‘abuse of power’

Voice of America: “Thai PM Yingluck Shinawatra Ousted by Court





With 3 updates: A verdict

7 05 2014

The only place PPT can find a more-or-less live reporting of the Constitutional Court reading of the verdict is The Nation. This is unfortunate as The Nation is notoriously bad at this kind of thing, mixing bias with fact.Nation - Copy

If we go with The Nation’s reporting, however, things are going entirely against Yingluck Shinawatra.

Update 1: According to The Nation, “The Constitutional Court ruled Wednesday that the prime ministerial status of Yingluck Shinawatra was ended because she violated the charter on the transfer of National Security Council chief Thawil Pliensri.”

Update 2: Facebook post by journalist states that Cabinet remains in place until next election a new cabinet can be installed.

Update 3: The Nation reports: “The Constitutional Court ruled Wednesday that nine members of the first Yingluck Cabinet that approved the transfer of National Security Council chief Thawil Pliensri were removed from office along with caretaker PM Yingluck Shinawatra.
The nine are Deputy Prime Minister Pracha Promnog, Labour Minister Chalerm Yoobamrung, Deputy Prime Minister Plodprasop Suraswadi, Deputy Prime Minister and Finance Minister Kittiratt Na-Ranong, Deputy Prime Minister and Foreign Minister Surapong Tovichakchaikul, PM’s Office Minister Santi Promphat, Information and Communication Technology Minister Anudith Nakornthap, Deputy Defence Minister Gen Yuthasak Sasiprapha and Deputy Commerce Minister Siriwat Kachornprasart.”





Updated: Constitutional Court firmly in the hands of royalists

25 04 2014

The Constitutional Court really does go out of its way to demonstrate that it is in the hands of royalists.

The supposedly independent court demonstrated, for the umpteenth time, its complete and tonal bias in support of royalists, anti-democrats and the Democrat Party by inviting former Democrat Party prime minister and party stalwart Chuan Leekpai to speak at the Court’s 16th anniversary on the theme of “Political reform under the rule of law.” In the spirit of bias and double standards, Chuna said “the problems plaguing the country now had to do with the government’s mishandling of policies and using unlawful approaches in administration.” Chuan, with tongue firmly planted in cheek or perhaps not even recognizing his lack of connection to reality stated:

“The rule of law is a part of good governance. Adhering to the law to administer the country will bring peace to the country. However, there will be new problems if the government resorts to unlawful approaches (in dealing with national administration),” he said, alleging that on many occasions, the rule of law has been violated.

The anti-democrats he supports have never acknowledged the law.

Adding to the royalist feast of tripe and nonsense, Bowonsak Uwanno was wheeled out at the same event. He is reported to have stressed that “upholding the rule of law was imperative in allowing the country to progress and anyone who undermines the rule of law also destroys democracy.” His view was that “the Constitutional Court should have the authority to decide on its own what section of the charter to alter, if such content warrants amending.” In effect, Bowonsak is making a case for undermining the rule of law – the constitution is the basic law – and advocating another of the hundred cuts that is the royalist destruction of democracy.

Perhaps he is just a dope or is too blinded by royalist nonsense to see that the constitutional path to changing the constitution – and yes, it is the junta’s constitution that he himself spent a lot of time concocting – is clearly stated in section 291 of the constitution. It allows no role for amendment by the unelected court.

Perhaps he needs a Ferrari.

Update: A reader suggests that we needed to link this post to a Khaosod story on the Constitutional Court.

 

 








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