On the judicial coup’s progress

1 04 2014

Thomas Fuller at the New York Times provides an account of the judicial coup in progress. His story coincides with Yingluck Shinawatra’s brief appearance at the National Anti-Corruption Commission.

Fuller observes:

Although nominally independent, a number of the judges and top officials in the agencies handling cases against Prime Minister Yingluck Shinawatra’s government have had longstanding antagonistic relationships with Ms. Yingluck and her party.

Fuller cites Verapat Pariyawong, a lawyer and commentator:

It no longer makes sense to attempt to explain the current political situation in Thailand by relying on legal principles…. The current situation is more or less a phenomenon of raw politics whereby the rule of law is conveniently stretched and stripped to fit a political goal.

Wicha Mahakhun, a member of the NACC and former constitution drafter for the military junta in 2007, is quoted from back then: “We all know elections are evil…”. He added: “People, especially academics who want to see the Constitution lead to genuine democracy, are naïve…”.

Readers can catch his anti-democratic bias immediately. Fuller adds that: “Three current judges of the Constitutional Court, which has repeatedly ruled against the government in recent months, were also members of the post-coup commission to rewrite the Constitution.”

PPT has always referred to the appointed senators as the demon seed of the military junta and it is clear that we should be applying this terminology to the judges as well.

Like PPT, Likhit Dhiravegin, said to be “a prominent academic and frequent commentator on television,” has said that “an ‘orchestrated’ judicial coup was already underway.” He added: “everybody knows about it, inside and outside the country.”

It is all politics

26 03 2014

David Streckfuss has an op-ed in the Bangkok Post that raises some important points. He begins:

The political situation in Thailand is slowly but surely ratcheting up to something akin to a civil war. Civil wars are by nature bloody affairs that bring out the worst in everyone, let loose the extremists on all sides, and have no real heroes.

StreckfussHe suggests ways to avoid a bloodbath. The first is “to proceed as constitutionally as possible.” Maybe not, given that the current constitution is a military junta artefact and the courts interpret it in weird ways. The second “is to throw the entire framework of government back to the people,” but that seems inherently flawed to PPT. After all, the junta sent its draft constitution to a referendum and required just a yes/no answer on a huge document that was flawed in many places. He concludes that the “third possibility is to let things continue as they are,” which hardly seems likely to end confrontation.

PPT thinks there is a fourth possibility: the royalist elite needs to compromise and accept parliamentary elections and get of their fat butts and get serious about getting elected and ditch its coup-cum-massacre and born-to-rule mentality. Other sets of plutocrats and powerful oligarchs managed to do this in other places.

In all of this, we did like one point Streckfuss emphasized:

By acknowledging that Thailand is split politically, the country could free itself of the façade of neutral brokers. It recognises that “politics” is not what politicians do but rather the exercise and constraints of public power by any party. Under this definition, many groups are involved in the political project: civil society groups, social movements, elected officials, bureaucrats, and even the Crown Property Bureau and the monarchy. “Politics” is no longer a dirty word; it’s just the dynamic underlying any political society.

That would be a useful acknowledgement.



Opposing the Constitutional Court

24 03 2014

The Bangkok Post includes a story about a “group of academics calling themselves the Assembly for the Defence of Democracy (AFDD) yesterday issued a statement opposing the Constitution Court’s ruling to void the results of the Feb 2 general election.” We thought this statement well worth reproducing in full, and nicked it from Asia Provocateur:

Statement of the Assembly for the Defense of Democracy (AFDD)

We Oppose the Ruling of the Constitutional Court Intended to Render the 2 February 2014 Election Unconstitutional.

The Constitutional Court has ruled on a matter forwarded to them by the Ombudsman under Article 245 (1) of the Constitution. The matter in question was whether or not the general parliamentary election held on 2 February 2014, in line with the Royal Decree on the Dissolution of Parliament (2013), was constitutional. In a statement announced by the Chief Spokesperson  of the Constitutional Court, the Court commented that there were 28 electoral districts in which there were no candidates who submitted applications to contend in the 2 February 2014 election.  The Court further commented that elections cannot be held in those districts after 2 February because the effect would be that the general election was not held simultaneously on the same day across the kingdom. Therefore, the Court ruled that the 2 February 2014 election was not one that was held simultaneously on the same day throughout the kingdom. The effect of this ruling is to make the Royal Decree on the Dissolution of Parliament (2013), particularly the setting of the date of 2 February 2014 for the election, unconstitutional and in contradiction with Article 108, paragraph two, of the Constitution. It is the view of the Assembly for the Defense of Democracy (AFDD) that this ruling of the Constitutional Court ruling contains the following problems of constitutionality and political legitimacy:

1. Article 245 (1) of the Constitution of Thailand stipulates that the Ombudsman can propose a matter to the Constitutional Corut when he thinks that there is “any provision of law that begs the question of constitutionality.” Therefore, the substance of the case that the Ombudsman has the discretion to send to the Constitutional Court to consider must be a “provision of law.” But in this case, the clearly visible problem is that the substance of the case is “the holding of the general election.” When the substance of the case is not a “provision of law,” the Ombudsman cannot propose the case to the Constitutional Court, and if the Ombudsman forwards such a matter to the Constitutional Court, it is the duty of the Court to refuse to accept the request for examination. The acceptance of the aforementioned matter by the Constitutional Court is unconstitutional in line with Article 245 (1) and is equivalent to the Constitutional Court singlehandedly amending the Constitution and altering the substance of the permitted cases for examination under Article 245 (1). There is no provision in the Constitution that gives the Constitutional Court the authority to do so.

2. Article 108, paragraph two, of the 2007 Constitution of Thailand prescribes that, “The dissolution of the House of Representatives shall be made in the form of a Royal Decree in which the day for a new general election must be fixed within the period of not less than forty five days but not more than sixty days as from the date of the dissolution of the House of Representatives and such election day must be the same throughout the Kingdom.” The facts show that the election day was set for the same date (2 February 2014) throughout the whole kingdom in the Royal Decree on the Dissolution of Parliament (2013). The aforementioned setting of the date of the general election was therefore constitutional.

But in this case it appears that the Constitutional Court has used evidence of events that occurred after, and were unrelated to the setting of the date of the general election, as the basis of their examination. In other words, the Court used the fact of candidates not being able to register to compete in the election in 28 electoral districts to claim that if a general election was held in these districts after 2 February 2014, it would mean that the general election was not held on the same day simultaneously throughout the kingdom. The Court made this claim even though the Constitution does not mandate that the general election must occur on the same day throughout the whole kingdom. There may be acts of god or other unavoidable incidents which may make holding an election on the same day as the rest of the country impossible in some districts. The Constitution stipulates only that the election day must be “set” to be the same day simultaneously throughout the kingdom. Therefore, the setting of the date was already done constitutionally.

3. In addition, there is also the fact that, on the whole, the 2 February 2014 election passed in an orderly fashion. The Constitutional Court’s raising of the instances of not being able to register to run for election in some districts as a result of obstruction by some individuals in order to claim that the section of the Royal Decree on the Dissolution of Parliament (2013) that set the date for the general election was unconstitutional was done with the intention to spoil the  election. In addition to having no basis in law, there is an additional problem of interpretation of this ruling. Have the ballots of those people who went to vote on 2 February 2014 been destroyed or not, and under the authority of which Constitutional or other legal provision?

4. Analyzed from a perspective of political struggle, it can be seen that the obstacle to the election came from the collaboration between the People’s Democratic Reform Committee (PDRC) and individuals who support the PDRC inside and outside the Parliament, and collaboration between those who are overt and covert in their actions to destroy parliamentary democracy. In addition, the Election Commission of Thailand (ECT) did not act with an intention to work in line with their framework of authority and duty in order to successfully hold elections. Therefore, an effect of the ruling of the Constitutional Court is to prop up opposition to electoral democracy and make it come to fruition. This ruling disregards and neglects the rights of the people: those who hold the authority [in the country] and can express this authority in line with the rules and regulations that are in force.

5. This cooperation to oppose democracy will continue to create a political vacuum in order to open up the space for an extraconstitutional prime minister and government to come to power, and in order to push forward amendment of the Constitution in a direction that will weaken and devastate electoral democracy. The Assembly for the Defense of Democracy therefore condemns these attempts, those that have occurred and those that will occur in the near future, as antithetical to the basic rights and liberties of the people.

6. It is clear that from the 2006 coup up until the present, all of the independent agencies and the judiciary have become instruments of a powerful minority group acting in opposition to democracy. This group does so simply because they wish to swiftly destroy their political opponents. This has allowed the independent organizations and the judiciary to become distorted and seized to be used in the service of the destruction of democracy and the economic development of the country for the the sole purpose of causing the nation to become stagnant in a smelly, clogged whirlpool of violent conflict without end. Therefore, it is time for the people to come together to demand that the independent organizations and the judiciary are reformed and checks and balances are established. It is time to demand that these important mechanisms of the country come to be under the supervision of organizations representive of the voice of the majority. The people must take on these important tasks and make these changes come to fruition in the near future.

7. This method of spoiling elections has progressed for nearly a decade and may cause the nation to fall into a state of violence from which there is no exit. This state will remain until every authority and every side in Thai society comes to respect the equal voting rights of the people.

The Assembly for the Defense of Democracy would like to assert that the only solution for Thai society at present is to accept the principles of “equality of the people,” “sovereignty belongs to the entirety of Thai people,” “legitimacy of the majority,” and “respect in the rights and liberties of minority voices.” This is necessary to carry out reforms to eradicate the mechanisms that are antithetical to democracy, and before democracy, which is barely holding on at present, is completely destroyed.

Losing the plot

1 02 2014

PPT has usually read Thitinan Pongsudhirak of Chulalongkorn University with considerable interest and sympathy. This time, however, he seems to have lost his way in his op-ed at the New York Times.

Yes, sure, the political deadlock “is crippling the country,” but every commentator has said this.

But his commentary gets weak when he refers to “reset options that have worked in past times of crisis — a royal intervention or a military coup — do not appear to be in the offing.”

This is an odd perspective. The military coup has generally been about re-establishing the status quo ante, not “resetting.” And the king’s interventions have been about that, sometimes via shocking crackdown and sometimes to prevent a catastrophic loss by the elite. This latter scenario occurred in 1992 and whike his “moral authority” might be unrivaled, it is not unchallenged.

That “there have been no signs so far that he might intervene” should not surprise a student of politics, where a non-intervention is also a statement of position and intent.

After a couple of hundred words describing the general situation, Thitinan concludes that: “The only way forward for Thailand is to hold reforms in order to strike a more viable balance between the majority and the minority.”

What’s the evidence for deciding this? Apparently, the “Yingluck [Shinawatra] administration has deployed its unassailable parliamentary majority to ram through disastrous policies, such as an amnesty bill that would have absolved Thaksin of corruption charges.”

ThitinanDid it? This is an exaggeration. The government did this in the case of the lower house, but it responded to public pressure and withdrew the bill from the upper house. That is the way a parliamentary democracy usually works. It is an example of parliament functioning, not of dysfunction.

When Thitinan opines, like the anti-democrats, that “electoral winners cannot do as they please after scoring at the ballot box,” he should be applauding the success of the opposition to the dumb amnesty bill. He should also acknowledge that governments are elected on a platform, and it is their duty to implement that platform. The Yingluck government has repeatedly backed away from this duty in the name of compromise. In this sense, its supporters, the majority, can rightly complain that their wishes are ignored.

His claim that:

Rather than trying to seize power without regard for the will of the majority of Thai people who elected Ms. Yingluck, Mr. Suthep and the P.D.R.C. must make concrete demands and propose an actionable agenda on good governance that is acceptable to other parties. And the Yingluck government must address those grievances, by making political reforms a top national priority.

This is a nonsense. For a start, Suthep’s lot are about bringing down the government, and they offer no compromise. One might also ask why it is that reform is so desperately needed when all of the basic rules were set by the military and anti-democrat allies when they drew up the new rules of the 2007 constitution. That they keep wanting to change the rules doesn’t amount to reform. Rather it is about sour grapes, elite control and re-establishing the subordinate position of voters who seem to challenge them.

Updated: Constitutional “decisions”

26 01 2014

Quite a lot of groups, including the Puea Thai Party seem to have gone cold on the election. As PPT said previously, the election solves nothing in terms of the political crisis. However, we agree with those who have been pushing the line that supporting the election is a political act that directly challenges the anti-democrats “reform first” nonsense.

Indeed, following the rules might be a useful lesson for those who never accept that the rules apply to the privileged.

Now, the Constitutional Court has “backed the rescheduling of the election yesterday, though most of them said it would be a joint responsibility for the caretaker prime minister and the EC chief to discuss the issue.” Bangkok Pundit has a useful post summarizing the ruling.

That gives a bit both ways, but is it following the rules? The report continues:

The court said the two should decide whether the election should be rescheduled and if so, a new royal decree issued on when it should be held. In the ruling, the court also cited the rescheduling of the 2006 election, when a royal decree was issued to defer the election date.

CourtIs this following the rules? We looked at the Bangkok Post’s graphic on this, reproduced here.

Section 108  says:

The King has the prerogative to dissolve the House of Representatives for a new election of members of the House.

The dissolution of the House of Representatives shall be made in the form of a Royal Decree in which the day for a new general election must be fixed for not less than forty-five days but not more than sixty days as from the day the House of Representatives has been dissolved and such election day must be the same throughout the Kingdom.

The dissolution of the House of Representatives may be made only once under the same circumstance.

That seems pretty clear to us. The Constitutional Court is again, it seems, making things up as it goes along. Even the reference to a precedent seems odd, for the 2006 election was rescheduled, but not “under the same circumstance.”

The argument that paragraph 2 doesn’t rule out a changed date is true, but only if one ignores what it actually says. “Must” seems pretty darn clear.

At PPT there aren’t any fans of the military junta’s constitution that was rammed through on promises of being able to change it later and with huge royalist and military repression. Yet we were struck by some things in a Bangkok Post op-ed by long-time and elite-connected David Lyman of the law firm Tilleke & Gibbins. Lyman’s father began the connections.

Lyman’s article purports to be even-handed and seeking middle ground, but he essentially accepts the anti-democratic position. Yet it is his comments on the courts and law that caught our collective eye:

As a lawyer dedicated to respect and protect the rule of law, rather than rule by law, I have pondered on the direction of democracy and constitutional law in Thailand. They are in a state of flux. The current constitution may have its flaws, ambiguities and weaknesses, but it is the one we have and, to the extent possible, its provisions should be followed and upheld.

That’s true enough. The problem is that the Constitutional Court itself abuses this basic law. The case above is just one in a series of cases where the court has ignored the constitution it is meant to uphold.

Lyman continues, noting that:

the Constitution Court is under particular scrutiny. It is seen by most as the haven of last resort for good sense, balancing the practices, both good and bad, of the executive branch of government and its parliament against the rule of law and the constitution.

Vote NoClearly Mr. Lyman is confusing the court’s “good sense” with what the elite wants. Far from being “free of and above local politics and political pressures,” the court is deeply politicized. He adds that its justices must be able to “judge the legal issues before it according to accepted legal principles and the wording and spirit of the constitution.”

There’s the “out” for the lawyer and the politicized judiciary: it is the spirit of the constitution that matters…. We’ve written on the “spirit” of the 2007 basic law previously.

The 2007 constitution resulted from an illegal action by a military junta that overthrew an elected government and a widely-accepted constitution. It replaced it with a constitution drawn up by the junta’s hand-picked committee that was tutored by the junta and its unelected government. The “spirit” of the constitution, as interpreted by the Constitutional Court, is to give the elite what it wants.

The elite doesn’t want an election until it can change the rules (again). Voting now is a symbolic gesture of rejection. It is a rejection of the anti-democrats and a rejection of double standards.

Update: Bangkok Pundit has a useful follow-up post on reaction to the court’s decision. Note that the Democrat Party and its anti-democracy movement allies are still making demands about the need to change the rules of elections and more prior to an election (presumably they have to be convinced that the rule changes will be sufficient for them to gin a “fixed” election!). The New York Times is cited:

In analyzing Friday’s decision, Pornson Liengboonlertchai, a scholar at Chulalongkorn University in Bangkok who specializes in constitutional law, echoed the views of other experts in saying the court appeared to be making law, rather than interpreting it.

“The power to postpone elections does not exist in any part of the Thai Constitution at all,” Mr. Pornson said on Thai television. “The court itself is trying to establish this power.”

Mr. Lyman, take note.

And Thitinan Pongsudhirak at Chulalongkorn University is right to observe that:

[The ruling] is likely to be seen as part of the build-up to dislodge Yingluck from office, similar to what happened in 2008 but with higher stakes and higher potential for violence and unpredictability…”.


Election, reform or coup

28 12 2013

Thailand looks likely to end the year in conflict and political stalemate. The Yingluck Shinawatra government has called for an election and the major opposition party has joined street protesters and will boycott the poll, as it did in 2006.

If this election goes ahead, those who oppose the government will not consider it legitimate, and the impasse will remain. In 2006 the impasse was broken by yet another palace intervention, judicial meddling and, eventually the September 2006 military coup. With candidate registration now blocked in the south, legal cases will grow like topsy and the whole process will be called into question.

Those who oppose an election do so in the hope that they can once again change the rules of politics so that elections do not return pro-Thaksin Shinawatra governments. Following the 2006 coup a similar process was seen, in the form of the construction of the 2007 constitution. This is what the protesters mean when they use the term “reform.”

Such reform should be unacceptable for those who support democratic development and electoral representation rather than the rule by elites.

So is there a way out of the political impasse?

Of course, another military coup is now firmly back on the political agenda. And, if the media is to be believed, it has some support from an odd source. The usual source is the military itself. Army boss Prayuth Chan-ocha has, according to The Nation, “has refused to rule out the possibility of a military coup.”  The Bangkok Post reports on the interview:

Gen Prayuth said a coup could happen, but would depend on the situation and timing. He believed that at this stage nobody would listen to the military even if it did stage a putsch.

“The military does not shut or open the door to a coup, but a decision depends on the situation,” Gen Prayuth said.

“The military is now adhering to peaceful means and trying to place itself in a neutral position, not taking sides. We are not doing anything to interfere with the work of the authorities, while looking to take care of the people.”

Prayuth knows that the military can make political capital from this impasse, and while he states the military is neutral, inaction is also a politicized decision.

While Prayuth stated that the “armed forces will do what they can to prevent violence,” some of the evidence suggests not all of his subordinates agree with him. Indeed, in the report at The Nation, it appears that Prayuth is critical of police, called for investigations of shootings, and seems to suggest that agents provocateur were at work:

They might think that without violence, the country’s problems cannot be solved and they cannot succeed. I cannot be sure, but it appears their actions are similar to those used in 2010. I’m not sure if this group took part in the [anti-Abhisit Vejjajiva government] protest…”.

We do not recall Prayuth calling for the 2010 events to be “thoroughly investigated.”

In an odd turn of events, but confirming that the military could be political winners, at the Bangkok Post, Deputy Prime Minister Surapong Towijakchaikul is reported to have “admitted on Friday that some Pheu Thai Party members would prefer another military coup to a regime dictated by the agenda of the anti-government protesters.” He is reported to have said: “They would prefer seeing the military tear up the constitution” to seeing the future of the country in the hands of ”those people coming from nowhere…”. He means the anti-democracy movement. It is a strange day when the military seems politically moderate when compared with extremists. Perhaps it is “good cop/bad cop” at work?

Perhaps the most likely way out is for hurried judicial action, as in 2008. More violence would be a pretext for this intervention. Cases are piling up, and a strategic judgement or a series of them could easily bring an end to the impasse, yet based on previous decisions, this path would be a win for the anti-democrats.

Updated: Anti-constitutional advice and demands

18 12 2013

PPT never ceases to be amazed at how simple it is for those who support the anti-democratic movement to conveniently ignore the constitution their military junta put in place in 2007, and which they keep shouting they support.

PADist op-ed scribbler Veera Prateepchaikul is dead keen for a delay in the election, supporting Suthep Thaugsuban and the anti-democratic movement. The problem for the movement and its supporters is that their calls are all outside the constitution they claim to uphold.

As another Bangkok Post story states:

[State] Council secretary-general Chukiat Rattanachaicharn said Section 108 of the constitution requires that the election be organised within 60 days of the House dissolution, or by Feb 6….  It would therefore be impossible to amend the royal decree on the election to allow the polls to be arranged at a later time, Mr Chukiat said….  Any move to change the election date would violate the constitution, he added.

Veera and his lot complain about the rules being unfair. Yet their people put them in place. Where are their standards and their consistency? Yes, because of their educated and elite position, the rules only apply to others. Another example of double standards.

Update: At The Nation, the “Election Commission’s new team says it could delay the general election from the scheduled date of February 2…”. EC member Somchai Srisuthiyakorn stated:

“We are willing to delay [the election] for three months, six months, one year to two years. But first things first: The political parties have to reach an agreement. The second thing is whether it [a delay] is allowed by the law. We, the EC, are the third factor…”. That’s about as clear as a bucket of mud.

How can this be given the Council of State’s comment above?

Somchai said: “The government can issue an executive decree to postpone an election if there is an emergency situation, he said. For example, if there were a national disaster or a war, nobody would go to the polls.” That seems like an invitation to Suthep to create chaos.

The dopes at The Nation come up with “Reasons to postpone.” They list five alleged reasons, four of which have nothing to do with postponing a national ballot. The one that does states: “A poll can be delayed by 30 days via royal decree if there is civil unrest, floods, fire or other eventualities (according to Article 78 of the 2007 Constitution’s organic law on elections)…”. That’s the emergency situation Somchai talks of, but there is nothing in this about “three months, six months, one year to two years.” Have we missed something or is the EC still politicized and ignorant of the law it administers?



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