Judicialisation of Political Crisis in Thailand

justice

Lack of impartiality, or use of double-standard judicial process, is the accusation the pro-Thaksin and red-shirt political groups in Thailand have raised against the Abhisit-led government. They believe that they have been maltreated and unfairly deprived of justice that is due to them. They have come to this conclusion by the way former Prime Minister Thaksin Shinawatra and the political parties and politicians affiliated with him have been formally charged or given court verdicts in numerous cases.

Such rulings are really numerous, including, among others, the sentence given by the Constitutional Tribunal ordering the dissolution of the Thai Rak Thai Party and a five-year deprivation of political rights of the members of the Party’s executive committee (30 May 2007) and the Constitutional Tribunal’s verdict leading to the dissolution of the People’s Power Party, the Chart Thai Party, and the Matchimathipatai Party (2 December 2008).

samak_thumbOn 2 September 2008 the Constitutional Tribunal also unanimously ruled that Prime Minister Samak Sundararavej was disqualified for the premiership because he was employed as a presenter for two TV cooking shows called “Chim Pai Bon Pai” [Tasting and at the Same Time Complaining] and “Yok Khayong Hok Mong Chao” [Coming together at Six O’clock] sponsored by Face Media Co., Ltd. This company is a profit-oriented venture that provided Mr. Samak with a monthly payment of 80,000 baht for his “car petrol”. The reception of such a payment was unlawful under Article 167 of the 2006 Constitution, and his tenure of the premiership ended in accordance with Article 182, paragraph 1 (7), of the Constitution.

 The prime minister of Thailand was thus changed from Mr. Samak to Mr. Somchai Wongsawat, Thaksin’s brother in law, who, in his turn, lost this job following the dissolution of the People’s Power Party.

The Administrative Court has also made numerous rulings. To begin with, it nullified the privatization of the Electricity Generation Authority of Thailand (EGAT) by the Thaksin government (which would otherwise result in the Thaksin clique reaping from the transformation of this state enterprise).

pad_govthouseIn 2008 the Court made rulings that provided protection for the rights under the Constitution of ASTV to air its programmes, and of the yellow-shirt group of people to rally at the Government House. (It must be understood here that the rights to rally at the Government House are not related to the illegal acts of intruding into and occupying the premises, as well as damaging government properties. Those suffering from the consequences of the illegal acts must bring criminal as well as civil suits against the individuals who committed these acts to the court of justice. The illegal acts of these people were not the concern of the Administrative Court).

The Supreme Court’s Criminal Division for Holders of Political Positions delivered a guilty verdict on Thaksin’s corruption charge, for which he was liable to two-year imprisonment (without any right for appeal or probation). Thaksin had committed this criminal act by signing permission for his wife to enter into a business deal that represented a conflict of interests with the state while he was the prime minister of Thailand.

 The Supreme Court’s Election Case Division delivered its verdicts imposing punishment on a large number of politicians who had been accused of perpetrating electoral frauds (most of them were members of the Thai Rak Thai or the People’s Power Party that was under Thaksin’s patronage).

potjaman_court

On 31 July 2008 the Criminal Court (an ordinary court of justice) delivered a three-year imprisonment sentence (without probation) on Khunying Pojaman (Thaksin’s wife) and her associates for the criminal act of which they had been charged of intentional evasion of tax payment.

The case that has angered Thaksin and the pro-Thaksin groups is the freezing of his assets.

The case had undergone an extended period of consideration before the public prosecutor eventually decided on 29 May 2008 to lodge a formal charge with the Supreme Court’s Criminal Division for Holders of Political Positions that Thaksin’s assets of 76,621,603,061.05 baht, which represented an unusual wealth, had been acquired through acts in conflict of interests between individuals and the common good, and, therefore, that these assets, together with the interests that had been incurred thereto, be seized as state assets.

In addition to cases referred to above, there are many others, which altogether amount to a total of about 17 cases in which Thaksin has become the formally charged, accused or defendant at various stages of the Thai judicial process.

 The cases that have been referred to (and those that have not been mentioned here) have been going through the due judicial process of justice in Thailand. Other persons and parties that were formally charged with committing unlawful acts have been sentenced in accordance with the law – either as guilty, or not guilty, or having their accusations revoked at some stage of the judicial process. In cases in which they received guilty verdicts, they had to be duly punished – no matter who they were, or whether they loved or hated Thaksin.

court_2

As of 15 April 2009, members of the yellow-shirt group have been charged in 240 cases, whereas those in the red-shirt camp have been charged in 103 cases (Matichon Daily, 23 April 2009). Naturally, each group wants a smaller number of charges against its members, and considers that the opposite side should receive a larger number of charges and guilty sentences than it has actually done.

Actually, many more wrongdoers than those who have already been charged or sentenced should be brought to justice. Some cases have been distorted with shrewdness by the police investigators, attorneys, and the accused themselves. Hence, the accusation that the Thai justice system has adopted a double standard, or that Thaksin and the pro-Thaksin group have been robbed of justice that is due to them, is obviously unfair.

That Thaksin and his associates have been brought to justice in an unusually large number of cases might be attributable to the fact that these Thaksin-type people are prone to unlawful acts – they might have been used to such acts and developed such a callous disregard for them, that they genuinely believe that nothing is wrong.

Perhaps for this reason, the pro-Thaksin people are likely to defend him on his notoriety for corruption that this kind of unlawful act is a normal practice in Thai society. Some people even resort to the distasteful saying that “who among the politicians are not corrupt”. With such a belief, they conclude that all government officials and politicians are like them – that is, they are all corrupt. No matter how much Thailand has suffered from corruption, the number of those who are not corrupt should amount to not less than half of its population; or none of those who engage in some corrupt practices would not do so on such a scale as Thaksin has done (perhaps few people in the world would commit a corruption on such a scale).

Those who refuse to make a distinction between right and wrong, or between what should and should not be done, may be called “Thaksinians”; and their behaviour, especially their callous disregard for unlawful acts may be referred to as “Thaksinian behaviour”. These people and their behavioural pattern may together be regarded as constituting the “Thaksin regime”.

thaksin_court

It must be admitted that the Thai justice system has to some extent been distorted by political as well as financial power. During the time when Thaksin and Thaksinians  were at the height of their power, the politically and financially powerful Thaksinian wrongdoers who had committed unlawful acts were often protected with the cases in which they were involved being terminated before they reached the court of justice. This is because if a case is submitted to the court, it is far more difficult for money and influence to have any effect.

But nothing is certain, because it depends on existing conditions and connections in a particular case.

The case of unlawful general elections on 2 April 2008 was ruled by the Constitutional Tribunal as void. When, as a result, the members of the Election Commission headed by Police General Wasana Permlap (consisting, apart from the Chairman of the Commission, of Mr Virachai Naewbunnian and Mr Prinya Nakchattri) were formally charged with distorting the Election Act and unlawfully rendering assistance to Thaksin’s associates, Thaksin could not protect them. They were sentenced (25 July 2008) to a four-year prison term and 10-year withdrawal of the electoral rights on charges of having unlawfully performed their official functions under Article 157 of the Criminal Code.

That Thaksin had not been able to protect his associates (in this case the Election Commission members who had been helpful to Thaksin and his clique) must be regarded as a miracle or an exception. If the case was directly related to the interests of Thaksin and his family, it might not have come out this way.

kokotor_jails

Prior to the coup d’état on 19 September 2006 Thaksin had used his political power to interfere with the work of independent organizations, including the National Anti-Corruption Commission (NACC) and the Constitutional Tribunal, such that these organizations almost became dysfunctional. The red-shirt group of people who love justice, especially the poor, should have appreciated the justice system that is free from political interference: only a free justice system can deliver justice to all the people.

This does not certainly mean that without Thaksin, the justice system could function perfectly well. However, the present justice system that still remains imperfect is quite different from one which adopts a double-stand practice. The Thai educational system has failed to shape the people’s behaviour such that honesty becomes an important attribute of their character. If the pro-Thaksin people see that Mr Abhisit or any other politician who they do not like commits unlawful acts, they should bring charges against them in court, so that he or she be duly punished if found to be guilty. A citizen who loves Thaksin, the King, and the nation should not accept a differential treatment in cases of unlawful acts perpetrated by politicians or anyone else.

Those who love Thaksin should understand that the person they love and hold in such high esteem has not behaved like ordinary people. He has amassed such a huge amount of wealth that it would not be used up even if he was reborn time and again to spend it after he had passed away.

So why did he still abuse his political power to gain benefits for himself and his family and disguise some of his wealth as belonging to nominees such as his servants, drivers, and gardeners, such that the NACC and the Constitutional Tribunal had to spend time considering whether he had committed any unlawful act by hiding some of his wealth away?

Why did he not realize that he had become prime minister but still had not changed his way of behaving, so the second and third episodes of stashing away his huge wealth, this time in foreign countries, came back to haunt him?

Worse still, he has been using the money he took from the land of his birth – the land that had provided all support for his and his family’s luxurious lifestyle – as a weapon to harm this land, as evinced in the ugly chaotic incidents of last April. Is this not a harm too cold-bloodedly inflicted on the country and its people?

redshirt_4 

Thaksin has not been unfairly treated by the Thai judiciary, as the red-shirt people tend to see, because he still enjoys privileges that ordinary people, and even politicians in other countries, do not possess.

Alberto Fujimori, the ex-president of Peru, who had been in power for 10 years (1990-2000), was not as unusually rich as Thaksin is, but his rule was as authoritarian and power-abusive as the Thaksin regime. The two were also similar in that they disguised their abusive authority with populist policies. Now out of power, Fujimori is serving a 31-year jail term for two cases of unlawful acts. It is interesting to note that though Fujimori had been in exile for a long time in Japan, the Peruvian government eventually succeeded in bringing him back to serve his jail sentence in Peru.

The ex-president of Taiwan, Chen Sui-bian, had been in power for eight years. Now out of power, he has been charged with corruption and hiding away his wealth abroad. The amount of wealth that he is accused of having unlawfully amassed is minuscule in comparison with that of Thaksin, but he could not avoid the consequences of what he is accused of having perpetrated. He has been in detention during the judicial process for a year now: the court has refused him bail because he might flee the country to seek refuge in a foreign country.

This is an international standard for treatment of those who have been charged with corruption or abuse of power. It is unlike the Thai practice, whereby a bail seems to be easily granted. Many of those once in powerful positions have evaded jail terms by hiding or taking refuge in a foreign land.

 thaksin_10

In fact, the Thai bureaucratic system does not have a double standard: it has many standards. If the red-shirt people still believe in the existence of a double standard and want to transform it into a single-standard practice, they should help in bringing Thaksin back to serve the two-year jail term as in the case of other Thais. Thaksin still has the privilege of not being extradited: the officials responsible for exercising their authorities in “neutral gear” should be aware that they might be liable to a criminal prosecution under Article 157 of the Criminal Code.

If the red-shirt people want the Thai court to have only one standard, and if that standard is to be determined by Thaksin, we must perhaps release all those in prison – so that they enjoy the same privilege as Thaksin now does.

Moreover, everybody is entitled to reject the court authority and accuses the court of miscarriage of justice, if he or she is not content with the court procedure or ruling. On the other hand, everybody has the right to hire clever attorneys to see who has violated his rights under the law and to bring law suits against those who have done so with a damage claim amounting to a huge sum of money as a means of intimidating other future violators as Thaksin has done.

Do the red-shirt people who love Thaksin really want Thailand where they are residing to proceed in this way? 

Indeed, the idea of promoting judicialisation in Thailand resulted from the behaviour of Thaksinian politicians who have created such an extent of chaos and stagnation in this country that no one is in a position to rectify the situation. Only the justice system still remains untarnished and credible in the eyes of the public; given his grave concern that the situation deteriorated, His Majesty the King spoke to the judges who were granted an audience with him on 25 April 2006, recommending them the use of judicial power to solve the political crisis in Thailand. After that judges in all divisions, particularly those dealing with political cases, set to work energetically in response to His Majesty the King’s recommendation. The result is some measure of success in resolving this crisis, especially through bringing political cases to special courts of various types that have so far considered them in due process of law.

His Majesty the King loves and has concern for the welfare of all Thai people. We should not think that he is biased for or against any people or groups.

 

References

  1. “W. Wachiramethi points out judicialisation is a rule by righteousness” in www.talk.mthai.com/topic/22098
  2. The cases in which Thaksin has been formally charged or which have been accepted for consideration by the court, or which are still at the earlier stages of investigation and/or consideration by the police, NACC, or the public prosecutors can be seen from numerous websites that provide information for the interested members of the public to see for themselves what is real or fake.

 

Author: Khien Theeravit
-Professor Emeritus, Chulalongkorn University
– Outstanding Research Scholar awarded by National Research Council
 

(Translated by Asst. Prof. Dr. Theera Nuchpiam)

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