Law and the challenge for the Constitutional Court

21 02 2019

The fallout from Thaksin Shinawatra’s ill-fated attempt to have Ubolratana nominated as the Thai Raksa Chart Party prime ministerial candidate continues.

The Bangkok Post reports that the party’s defense before the Constitutional Court has three parts:

First, the party has no hidden agenda and its nomination received consent from Princess Ubolratana to stand as the TRC’s prime ministerial candidate.

From Ji Ungpakorn’s blog

Secondly, the party will show the term “hostile” does not cover the party’s actions. In their view, the term covers communism and rebellions under Section 113 of the Criminal Code.

Lastly, the EC’s complaint is unlawful because the agency failed to follow a due process by conducting a probe into the issue….

To understand the “charges,” it should be recalled that the puppet Election Commission unanimously and very rapidly decided to recommend the dissolution of Thai Raksa Chart based on “evidence” that included:

the Feb 8 royal announcement, the party’s letter notifying the person it proposed as the prime ministerial candidate and the party’s letter allowing Parliament to consider approving its candidate as PM.

In this context, Prachatai’s interview with Sawatree Suksri, a law lecturer with the Faculty of Law at Thammasat University “on the legal status of the Royal Command and its interpretation” is important reading.

She is adamant that the so-called Royal Command or Proclamation is not law, despite its use as such by the EC and anti-Thaksin forces. She states:

If anything is to become law, it has to follow the country’s legislative system. Thailand has a codified system of laws issued by the legislative branch, or the executive branch in the case of a royal ordinance, or the administration in cases of secondary laws where this is allowed by the fundamental laws. Because of this, the royal command is not a law, because it did not go through legislative procedures.

Sawatree adds: “the content of the Royal Command is not an order, but a recommendation.”

In other words, the use of King Vajirlongkorn’s royal proclamation on his elder sister is now a test of the judiciary. If the Constitutional Court acts appropriately and legally, it would reject the EC’s use of the king’s proclamation. If it stays true to it royalism, it will change the very meaning of law in Thailand, taking the country even further towards a neo-absolutist regime.





Further updated: Media reprimands Gen Apirat

20 02 2019

Army commander Gen Apirat Kongsompong has been hammered by the media today. For example, the Bangkok Post had an editorial, two op-eds and a story all highly critical of his attack on campaigning politicians as “scum.”

In the story, it was reported that “[p]oliticians demanded … the army chief remain neutral in the lead-up to the … election after he rebuked them for calling for defence budget cuts and revived an anti-communist song…”.

Actually, it is a song that belongs to extreme rightists and ultra-royalists, most recently used by the yellow-shirted royalists People’s Alliance for Democracy and the People’s Democratic Reform Committee to attack pro-Thaksin Shinawatra groups and politicians.

In other words, Gen Apirat was reaffirming his ultra-royalism as an anti-democratic rightist. The notion that he will be “neutral” is farcical. The military is never politically neutral.

Commenting on this, Ploenpote Atthakor points out that one of the (false) justifications for the 2014 military coup was about eliminating political conflict. As she points out, Gen Apirat is promoting conflict. For PPT, it is clear that the military has been stirring conflict throughout recent decades. The military is the problem.

Even determined anti-Thaksinista, Veera Prateepchaikul points out:

Many people may love the song and call it patriotic. But for a person like me and many others who are old enough to have witnessed the horrors of the “October 6” massacre and heard it being blasted around the clock before that fateful day by the army-run Yankroh radio station alternating with the hateful phone-in comments against the students inside Thammasat University, this is unquestionably a far-right hate song for its association with this bloody history.

The Post’s editorial comes straight to the point:

The troubling response of the army commander to a rather benign political campaign promise has quickly escalated. Gen Apirat Kongsompong didn’t just try to refute the call to cut both the military budget and the number of general officers. He retaliated by reviving the most hateful song in Thai political history, and promised to flood military bases and the airwaves with it. It is a move with an ironclad guarantee of major political and national division.

It continues to condemn Gen Apirat, saying what was:

hugely disappointing and inappropriate was Gen Apirat’s instant and ill-formed leap into the political campaign. The decision of the highest ranking army officer to step into the election debate was questionable. What is indefensible is his order to revive and propagandise his soldiers with the noxious and odious 1970s song Nak Phandin.

Yet it is hardly out of the ordinary. Gen Apirat, like his predecessor Gen Prayuth Chan-ocha have made their careers by being palace loyalists, rightists, and murderous military bosses.

Perhaps the most interesting commentary, however, was at Thai Rath, which outlines Gen Apirat’s family story. His father, Gen Sunthorn Kongsompong, a diminutive rightist also known as “Big George,” was a corrupt leader of the 1991 coup. The paper points out that, following a dispute between Sunthorn’s wife and mistress in 2001, people were stunned to learn that the property under dispute was valued at over 3.9 billion baht.

Thai Rath goes through the whole story of this corrupt general, the father of the current military commander. Being a powerful military boss has been lucrative, but for the Kongsompong clan, the wealth siphoned was conspicuously huge. We have no evidence of who shared in that huge wealth.

Update 1: It is not just the media that has gone after Apirat. As Prachatai reportsAs Prachatai reports:

… student activist Parit “Penguin” Chiwarak, along with other members of the Student Union of Thailand, also went to the Army Headquarters to read an open letter to the Army Commander in Chief protesting Gen Apirat’s comment on ‘Nuk Paen Din.’

Following that:

… political activists Ekkachai Hongkangwan and Chokchai Paibulratchata held a demonstration at the Royal Thai Army Headquarters in response to army chief Gen Apirat Kongsompong’s order to broadcast the controversial Cold War anthem ‘Nuk Paen Din’ (‘Scum of the Earth’) on all army radio stations and over the intercom at military headquarters.

Update 2: As might be expected, the military and its rabid response to politicians has been defended by what the Bangkok Post describes as “Chulalongkorn University political scientist Panitan Wattanayagorn…”. Panitan is neither a “political scientist” nor an “academic” in the true senses of these words. Rather, he is a toady of the military and in its pay. He’s a propagandist for the military, lying that “army chief Gen Apirat spoke out in response to the proposed defence budget cuts because he intended to defend the interests of rank-and-file soldiers who would be affected by any spending cuts.” It is a ludicrous fabrication. Defending the murderous military is nit the work of serious academics.





The Constitutional Court and its work

20 02 2019

Prachatai has an interesting story on the Constitutional Court, well worth reading in full.

The Constitutional Court hasn’t had so much politicized work to do under the military junta, so some have forgotten how central it was to undermining elected governments from 2007 to 2014 and evening engaging in what many saw as a judicial coup in 2008.

But it is the politicized Constitutional Court that now holds the fate of the Thai Raksa Chart Party in its tainted hands.

The Prachatai story includes brief details on some nine cases that have gone against pro-Thaksin Shinawatra parties.

This reminds us that there is a more detailed analysis of the Constitutional Court by Björn Dressel of the Australian National University and Khemthong Tonsakulrungruang of the Faculty of Law at Chulalongkorn University. Coloured Judgements? The Work of the Thai Constitutional Court, 1998–2016,” behind a paywall, is summarized:

Created in 1997 as part of a major constitutional reform, Thailand’s Constitutional Court has since become embroiled in several high-profile political controversies. Since the 2006 coup, because a number of such decisions have favoured one political camp and considering obvious close and long-standing relations between judges and political elites, questions have arisen about the court’s ability to act as an independent arbiter. Is this view justifiable? To answer that question, this article first analyses how the court has behaved across political administrations in 32 high-profile cases since 2001. It then turns to the socio-biographic profile of the bench, the politics of nominations and changes to its composition, particularly since 2006. Finally, the article considers data on participants in classes offered by the Constitutional Court, which makes it possible to better understand the links between Thai political and judicial networks. The analysis finds evidence of politically biased voting patterns and increasingly partisan nominations to the court, though formally appointment procedures are apolitical, which suggests the politicisation of the court and growing ties between judicial and political elites. These findings raise new questions about the public’s perception of the Constitutional Court’s legitimacy and prospects for the rule of law.

Thai Raksa Chart is not in the hands of an unbiased, apolitical court. It is a court that has done the work of royalists, stunting the development of electoral politics.





Updated: Nothing seems to change

19 02 2019

The reporting over the last few days seems to suggest little has changed in over a decade of military coups, elected governments illegally thrown out, scores of deaths and mass street demonstrations.

In observing this, we are leaving aside the continuing speculation regarding Thaksin Shinawatra’s failed bid to make a (semi-) royal fruitcake a prime minister. Those guesses range on a spectrum from the events were out of the box to ordinary, that they weakened the king or made him stronger, that the king knew what was going on or he didn’t, and even resurrect some perspectives from the 1950s to try to explain various scenarios. And there’s still the misleading view that Thailand is somewhere on a road to democracy. And that’s all from the same source in several articles.

But back to the nothing-much-changes idea.

First, we see The Dictator showing himself for his Palang Pracharath Party and the party using his picture on campaign posters while he remains deeply engaged in all kinds of state activities, spending and so on.

Meanwhile, his former boss, brother-in-arms and Interior Minister Gen Anupong Paochinda has “defended his [now] boss … by insisting that junta leader-cum-Prime Minister Gen Prayuth Chan-ocha should not step down before the royal coronation takes place in two months.”

Here the point being made to the electorate is that only The Dictator and the military can be “trusted” as loyalists. It was the anti-democrats of the People’s Alliance fro Democracy that proclaimed loyalty as a political issue of the era by donning royal yellow.

Second, to make the point about loyalty, none other than anti-democrat Suthep Thaugsuban is quoted as declaring that only a vote for his party (and pro-junta parties) “can prevent Thaksin Shinawatra from returning to power through its proxy parties…”. That’s a refrain widely heard from the anti-democrats for over a decade. And, Suthep appears to be admitting the electoral strength of the pro-Thaksin parties, something seen in every election from 2000 to 2011, when elections were free and fair.

Suthep’s claims that the anti-democrats could keep Thaksin’s “proxies” out saw him drawing on the experience of the repressive actions of the junta in forcing through its 2016 constitution draft in a “referendum.” Perhaps he expects/hopes for similar cheating in the junta’s “election.”

And third, Army boss Gen Apirat Kongsompong, who himself wielded war weapons against red shirt protesters in 2010, and who refuses to rule out another coup, has again declared that he will not be controlled by “evil” politicians.

After the military budget increasing 24% under the junta, the notion that it might be cut by an elected government prompted the evil but loyal Gen Apirat to order the “ultra-rightist song ‘Nak Phaendin’ [Scum of the land] to be aired every day on 160 Army radio stations across the country…”. This anti-communist song from the 1970s – another period when the military murdered hundreds in the name of the monarchy – was to be played twice a day. It was also to be played at the Ministry of Defense and and in all Army barracks:

The Army chief reasoned [PPT thinks that word is incorrect] earlier that the anthem broadcast was aimed at encouraging everyone to be aware of their duties and responsibilities towards the country.

The “duties” he means are to protect the monarchy and murder opponents of the military-monarchy alliance.

He was supported by Deputy Dictator, Gen Prawit Wongsuwan, who supported the notion that politicians are “eveil” and deserve death at the hands of murderous loyalists. He said: “Listen to the song that the Army chief mentioned. Listen to it.”

Apirat partially revoked the order later, with the song continuing to be broadcast inside the Army Command at noon. As former Thammasat rector and historian Charnvit Kasetsiri expressed it,

Other than calling for a return to absolute monarchy, they’re now rehearsing ‘Scum of the Earth,’ too? History will repeat itself if we don’t learn from it. And where will that path take us? Better or worse?

It leaves Thailand in its ultra-conservative, ultra-royalist time warp.

Clearly, the Army commander and the Defense Minister are campaigning against pro-Thaksin parties and for The Dictator and the party of the rightists, Palang Pracharat.

That’s not new. Gen Prayuth Chan-ocha, then head of the Army, demanded that voters reject Thaksin parties in 2011. However, this time, the threat is louder, nastier and very, very threatening.

Nothing much changes.

Update: PPT noticed that the Election Commission has issued a warning that “posting text, sharing or commenting on messages that defame political candidates violates the Computer Crime Act.” So how will the EC respond to Gen Apirat’s condemnation of Puea Thai and other pro-Thaksin parties as “scum” and actively campaigning against them? As a puppet agency our guess is that it will do nothing.





On the cheating campaign trail

17 02 2019

Thai PBS recently reported that The Dictator, in his role as prime minister “toured Bangkok’s … Chatuchak weekend market today (Saturday) and chatted with both vendors and shoppers.”

In fact, Gen Prayuth Chan-ocha was campaigning for his Palang Pracharath Party.

As the party’s prime ministerial candidate, he was “[a]ccompanied by Deputy Prime Minister [Gen] Prawit Wongsuwan, Interior Minister [Gen] Anupong Paochinda and Deputy Transport Minister Pairin Chuchotethavorn…”.

The campaign message is clear, with the current and future prime minister appearing with the two generals who were with him in defeating the red shirts and overthrowing the last elected government. The old team is united, loyal  and ready to rule for another four years.

The Dictator stated that “the current Pheu Thai- Palang Prachart conflict spurred him on.” That is, only the devil party can defeat the disloyal Thaksinites.





Analysis of recent events

15 02 2019

PPT has refrained from mentioning much of what passes for analysis of the events of the past week. One reason for this is that most of it has been highly speculative and bound in rumor.

Some self-styled analysts and quite a few academics have produced speculative accounts. Several managed to come up with different interpretations of the same events. Some have seemingly reproduced other accounts. Some of the more careful have come up with possible scenarios, allowing readers to choose the version that suits their perceptions and biases.

Perhaps that’s why PPT found New Mandala’s “Q&A: Supalak Ganjanakhundee on Thailand’s week of chaos” useful. Supalak is editor of The Nation. We highly recommend reading it, and we only present some highlighted bits and pieces here.

Supalak says that both Thai Raksa Chart and Puea Thai are under threat and the former will be dissolved by the Constitutional Court according to the so-called Royal Command:

The court will probably rule against the law, as the courts often do—the appeal to something outside the law, to make judgements on the law. If we are to make a clear argument, there is no legal status to the royal command.

The “election” campaign will now be dominated by the junta’s party attacking the pro-Thaksin Shinawatra parties as disloyal:

[Palang] Pracharat will try to create a political discourse against the Thaksin camp, by arguing that he brought the royal family into Thai politics—this is a dirty thing in Thai society. It’s not appropriate to have high society running in dirty politics. Now Pheu Thai is in a very awkward position indeed.

It is noted that Thaksin’s gambit was  not supported by many progressives who believe that there’s no place for royals in democratic politics. Supalak doesn’t rule out a pro-royalist alliance between Palang Pracharat and the Democrat Party.

The comment that “Thaksin underestimated the King” seems self-evident:

the royal command on Friday night was not a law. A royal command can only be applied within the [royal] house, not to people outside the house and particularly not in the political sphere. So it was logical for Thaksin. He might have calculated that this outcome was possible, but he underestimated the King. The other possibility is that the King changed his mind—otherwise Prayuth might not have shown his confidence by jumping into the game.

Later Supalak adds:

The royal command is an interpretation of the law…. The royal command has implied that if you’re born into the royal family, you cannot resign. I think that’s a very ambiguous interpretation to establish the monarchy above the law.

Supalak dismisses analysis that has the king commanding the military and opposed to the junta:

I don’t buy the theory that the King is so strong. I understand that he is trying to build the influence of his faction in the military…. His power is not—well, he could not have consolidated his power already. It will take time to have everything under his control. From my understanding, the military wants to have their own voice…. Now we live in a situation where the monarchy and the military are in tension over who will control who. It will take a few years for a clear picture to emerge….

The King commands loyalty from some factions of the military but people like Prawit and Prayuth want to be like people like Prem—middlemen between the palace and the military. They’re building their own regimes but this might also take time as they each hedge their bets.

In moving forward, Supalak is, in our view, making a good point in observing:

If you combine the idea of network monarchy and the deep state together, we might say that the overall effect is the emergence of some new regime that combines the military, the monarchy and capital. Big capital is always willing to support the monarchy, willing to support the military. Pracharat is the perfect model for combining royalty, the military and capital. The difficulty [in consolidating a model] is the unpredictable character of the King.

On the king’s politics:

… the monarch is not interested in institutionalising its power, working through laws, custom, norms and tradition. We cannot simply say—refer to the constitution for the role of the monarchy. Every constitution in recent history has been designed to enhance, not limit, the role of the monarchy. The trend is towards a direct form of rule. The people surrounding the King are not trying to institutionalise the monarchy.

On the future of free and open discussion:

The trend will not be an opening up [of discussion]. It will be a closing. Look at what the King has done since he took the throne—the message has been that he wants the country to be in order, disciplined. Look at the way he dealt with the constitution. He amended the constitution after the referendum—that’s the standard by which he exercises power. It’s not the rule of law. I really have little hope and will be pessimistic that our country will be ruled by the rule of law…. We are living with fear.





Heroes and villains

14 02 2019

The Supreme Court has finally upheld finally upheld the sentencing of six leaders of the People’s Alliance for Democracy to eight months in jail for actions during its occupation of Government House in 2008 may be seen as a late but appropriate judicial recognition of PAD’s illegal actions.

Chamlong Srimuang, Sondhi Limthongkul, Pibhop Dhongchai, Somkiat Pongpaibul, Somsak Kosaisuk and Suriyasai Katasila were charged with “breaking into Government House and damaging property there during the protests they led against the Samak Sundaravej government from May to December 2008.”

But the process involved shows how the sentences have been reduced through the judicial process. Originally they were sentenced “to two years’ jail each, commuted from three years due to their useful testimony.” That was reduced by the Appeals Court “to eight months in jail, commuted from one year.”

However, the “Supreme Court ruled that their demonstration was not peaceful, as they claimed, because their supporters broke into Government House.” Apparently, this means that occupying Government House grounds for seven months, seeking to prevent an elected government from operating is okay.

A Bangkok Post editorial is closer to the mark, noting that PAD’s leaders “resorted to extremism and violence, sexed up by hate speech.” It also observes that PAD “set up armed and unarmed forces who mingled among protesters … and used tens of thousands of their protesters as human shields against the police crackdown.”

That PAD’s “ruthless operations” served as a model for red shirts and the People’s Democratic Reform Committee cannot be disputed.

The Post’s history of support for the yellow-shirted and PDRC movements seems forgotten. So too are the double standards of the judiciary in the sentencing of red shirts versus the treatment of yellow shirts.

This should remind us that, in the current political climate that emphasizes “loyalty,” the PAD leaders going to jail means they become heroes and martyrs in the renewed battle against the villainous Thaksin Shinawatra and for the monarchy.